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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Brady & Ors v McAllister Brothers Ltd [2005] NIIT 931_03 (2 February 2005) URL: http://www.bailii.org/nie/cases/NIIT/2005/931_03.html Cite as: [2005] NIIT 931_3, [2005] NIIT 931_03

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THE INDUSTRIAL TRIBUNALS

CASE REF: 931/03 & Others

(See Attached Lists)

APPLICANTS: Brady & Others

RESPONDENTS: McAllister Brothers Ltd

DECISION

The unanimous decision of the tribunal is that the applicants are entitled to receive a total of 27 days leave per year and in respect of leave denied for the full calendar years of 2000, 2001 and 2002, the tribunal orders the respondents to make payments in accordance with the table set out in the body of the decision. The cases of all applicants appearing in the 'B' List were dismissed as a detailed schedule of loss was only prepared in respect of the 10 applicants on the 'A' List.

Appearances:

The applicants were all represented by Mr C Hamill, Barrister-at-Law, instructed by Wilson Nesbitt Solicitors.

The respondents were represented by Mr H Webb initially and then Mr C McGahon of Croner Consulting Ireland.

Summary Reasons

The tribunal found the following facts:-

1. The applicants contended that they were entitled to receive 28 days per year of annual leave including statutory days but the respondents contended that they were only entitled to 25 days. This dispute arose when Siobhan McAllister took over the running of wages and personnel within the company around the summer of 2000.
2. Siobhan McAllister alleged that upon her arrival in the company she had overhauled the holiday system in an attempt to understand what was due to the workers and she calculated it from the holiday books as being an annual entitlement of 25 days including statutory days. Mr Seamus Larkin one of the applicants gave evidence and said that it was his understanding that he had been told by Eamonn McAllister that they were entitled to 28 days annual leave and that he had received this up until the arrival of Siobhan McAllister in the company.
3. The tribunal found that the holiday "records" kept by the company were almost indescribably vague. The tribunal found that it was unable to deduce from the records just how Siobhan McAllister reached the conclusion that the annual entitlement of leave was only 25 days, even after it had given her the opportunity to present a written exercise to the tribunal explaining how she had done this. In passing the tribunal notes that Mrs McAllister was asked to present the exercise for the period of 3 years from 1996 – 1999, but in the event she chose to do her calculations from 1997 – 2000.
4. What however came clearly out of the evidence was that the applicants were accustomed to receive a week at Christmas and a week at Easter for their annual leave, and this week in each case would be made up by a mixture of statutory and annual leave days. The applicant's evidence was entirely firm on this point.
5. The basic pattern of holidays taken by the applicants was as follows:-

Date Statutory Day(s) Annual Leave Day(s)

1 January ...

17 March ...

21 and 22 April ...

23-25 April ...

5 May ...

14 and 15 July ...

10 moveable ...

Bank holiday in August ...

25 and 26 December ...

24 December customary day

29-31 December ...

Although these days have been extracted from the calendar for 2003, the tribunal considered that even though Easter is a moveable feast, the basic pattern holds good for any year.

6. The tribunal found that it was impossible to match Siobhan McAllister's oral evidence with the actual records, but the tribunal noted that her contention that the applicants were entitled to receive 2 weeks summer holidays (10 working days), one week winter holiday (5 working days) with the winter week being sub-divided between 2 block weeks i.e. 3 days at Easter plus 2 days statutory days – 2 annual leave days at Christmas plus 3 statutory days including New Year's Day. However, as the yard closed on New Year's Day 2 days were insufficient to provide a complete break from Christmas through to New Year in accordance with the applicants' understanding of what they had previously enjoyed, and also with the calendar. By virtue of the calendar, the applicants needed 3 days of annual leave between Christmas and New Year to cover the time off. Effectively, it was impossible for the applicants to

receive the total time off they said they received unless they had a total leave allowance of 26 days. While Mrs McAllister conceded that the yard was closed from Christmas Day through to New Year, she did not accept that this required the 3 days annual leave rather than 2. Effectively, to give the closure that the applicants said they enjoyed and Mrs McAllister accepted, this required 3 days and not 2 as she contended. The tribunal also found that the applicants enjoyed the discretionary day of 24 December in each year. Although it was cast as a discretionary day by all the respondent's witnesses, no evidence was raised before the tribunal to suggest that the day was not granted by the company. So effectively the tribunal found that the total yearly annual leave (including statutory days) was 26 days for the applicants but as 24 December was given by custom and practice, this raised the annual entitlement to 27 days for these applicants. The tribunal found that the applicants' loss of days occurred in practice in December in each year because although theoretically the one day at issue between the parties could be taken at any time, in practice it was taken in December to bridge the gap between Christmas and New Year.

7. The tribunal found on the authority of Group 4 Nightspeed Limited –v- Gilbert [1997] IRLR 398 that the deductions in the applicants' cases formed a series by virtue of their connection to the same contract, same holiday scheme and the fact that they all involved the same subject matter (disputed holiday entitlement). Accordingly, the tribunal found that the applicants' claims were brought in time and no question of the need to argue reasonable practicability under Article 55(3) of the Employment Rights (Northern Ireland) Order 1996 arose. The tribunal also considered that there is no merit in Mr McGahon's contention that if it was a breach of contract the applicants had waived it in that they had in some way not expressly reserved their rights. The tribunal does not accept that the applicants' conduct was in any way capable of constituting a waiver. The applicants protested vigorously and with the assistance of their union representative Mr Desmond Henderson.
8. The tribunal orders that the respondents pay the following sums to the applicants as set out in the table below:-

Employee	Weekly Rate 2000	Daily Rate x 2 in 2000	Weekly Rate 2001	Daily Rate x 2 in 2001	Weekly Rate 2002	Daily Rate x 2 in 2002	TOTAL
Robert Devlin	196.91	£39.38 x 2 = £78.76	196.91	£39.38 x 2 = £78.76	203.61	£40.72 x 2 = £81.44	£238.96
Colm McCabe	190.21	£38.04 x 2 = £76.08	190.21	£38.04 x 2 = £76.08	203.61	£40.72 x 2 = £81.44	£233.60
Mark Crossey	196.91	£39.38 x 2 = £78.76	196.91	£39.38 x 2 = £78.76	203.61	£40.72 x 2 = £81.44	£238.96
Francis McEvoy	190.21	£38.04 x 2 = £76.08	190.21	£38.04 x 2 = £76.08	196.91	£39.38 x2 = £78.76	£230.92
Seamus Larkin	300.31	£60.06 x 2 = £120.12	300.31	£60.06 x 2 = £120.12	300.31	£60.06 x 2 = £120.12	£360.36
Shane Magill	260.56	£52.11 x 2 = £104.22	260.56	£52.11 x 2 = £104.22	260.56	£52.11 x 2 = £104.22	£312.66
Aidan Hughes	196.91	£39.38 x 2 = £78.76	196.91	£39.38 x 2 = £78.76	203.61	£40.72 x 2 = £81.44	£238.96
Mickey Larkin	190.21	£38.04 x 2 = £76.08	190.21	£38.04 x 2 = £76.08	196.91	£39.38 x 2 = £78.76	£230.92
Noel Kavanagh	196.91	£39.38 x 2 = £78.76	196.91	£39.38 x 2 = £78.76	203.61	£40.72 x 2 = £81.44	£238.96
Eugene Quinn	168.86	£33.77 x 2 = £67.54	168.86	£33.77 x 2 = £67.54	168.86	£33.77 x 2 = £67.54	£202.62

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

Chairman:

Dates and place of hearing: 16 August 2004, 7 September 2004, 29 October 2004, 21 December 2004 and 2 February 2005 all at Belfast.

Date decision recorded in register and issued to parties:

THE INDUSTRIAL TRIBUNALS

CASE REF: 931/03 & Others

APPLICANT: Brady & Others

RESPONDENT: McAllister Brothers Ltd

'A' LIST

Mark Crossey CRN No: 932/03

Robert Devlin CRN No: 934/03

Aiden Hughes CRN No: 936/03

Noel Kavanagh CRN No: 937/03

Michael Larkin CRN No: 938/03

Seamus Larkin CRN No: 939/03

Shane Magill CRN No: 940/03

Colm McCabe CRN No: 943/03

Francis McEvoy CRN No: 945/03

Eugene Quinn CRN No: 950/03

THE INDUSTRIAL TRIBUNALS

CASE REF: 931/03 & Others

APPLICANT: Brady & Others

RESPONDENT: McAllister Brothers Ltd

'B' LIST

Tony Brady CRN No: 931/03

Michael Davis CRN No: 933/03

Richard Fearon CRN No: 935/03

Sean Markey CRN No: 941/03

Peter Marley CRN No: 942/03

Ciaran McCaughley CRN No: 944/03

Kevin Meaney CRN No: 946/03

Mark Medine CRN No: 947/03

Bernard McVerry CRN No: 948/03

Liam O'Neill CRN No: 949/03

Michael Rice CRN No: 951/03

Stephen Rooney CRN No: 952/03

Brian Donohoe CRN No: 1015/03