THE INDUSTRIAL TRIBUNALS

CASE REF:	625/06

CLAIMANT:			Steven Thomas Kirby	

RESPONDENT:		Flaxall Products Ltd

DECISION 

The unanimous decision of the Tribunal is that the claimant's claims, save for a claim for breach of contract concerning balance pay in lieu of notice and pension contributions, are not made out and these claims are dismissed by the Tribunal. The claimant's claims for balance pay in lieu of notice and pension contributions are well-founded and the Tribunal Orders the respondent to pay to the claimant the total sum of £1,542.50.

Constitution of Tribunal:

Chairman:		Mr J V Leonard

Panel Members:	Mr I O’Hea
			Mr A Crawford

	

Appearances:

The claimant appeared and represented himself. 

There was no appearance or representation by or on behalf of the respondent company, but the Tribunal did receive written submissions presented on behalf of the respondent company by Judith Blair, Solicitor.  	

REASONS

1.	The claimant instituted his claim to the Tribunal by claim form dated 18 May 2006 and received by the Office of Tribunals on 19 May 2006 in which the claimant claimed unfair dismissal, redundancy payment, holiday pay, notice pay and other unpaid amounts which he contended were due to him on foot of a breach of contract and a failure on the part of the respondent company to adhere to statutory provisions.

2.	In a response to the claim, the respondent conceded that the claimant had been an employee and had been dismissed; detailed reasons were provided concerning the circumstances of the dismissal which was contended to be on grounds of redundancy and to be fair.  It was stated that the claimant had been paid a redundancy payment by the Department for Employment & Learning, Redundancy Payments Service, amounting to £4,495.00 and, further, that notice pay had been paid to the claimant by Redundancy Payments Service, to the statutory maximum of £3,336.00.  The balance of the notice pay was claimed not to have been paid because the company was insolvent and the sum in question could thus not be paid.  Furthermore, it was contended that the claimant had been paid the sum of £68.86 by Redundancy Payments Service in respect of holiday pay.  The remainder of any contentions on the claimant's part were defended on the basis that the company was insolvent and it was suggested that the claimant might be a creditor under a Company Voluntary Arrangement entered into by the respondent.

3.	In this matter the Tribunal heard the claimant’s oral testimony and also oral evidence from a witness called by the claimant, George Winston Collinge. Further the Tribunal also heard from a representative from Redundancy Payments Service, Kathleen Dobbin.  The Tribunal also had presented to it written submissions placed before the Tribunal on behalf of the respondent by Judith Blair, Solicitor.  

4.	Accordingly, the issue to be determined by the Tribunal was whether or not any of the claimant’s claims, as mentioned above, were satisfactorily made out and, if so, the Tribunal had to determine the matter of appropriate remedy.

THE TRIBUNAL’S FINDINGS

5.	On foot of the evidence before it the Tribunal made the following findings of fact material to the issues to be determined, on the balance of probabilities:-

	(a)	Flaxall Products Limited, the respondent company, was a firm engaged in the textile industry and carried on business from Belfast Road, Carrickfergus, County Antrim. The claimant first commenced employment with the respondent company on 24 September 1992.  The claimant’s job title was ‘Production Manager’ and the terms of this employment were governed by a written statement of main terms and conditions of employment which unfortunately was not before the Tribunal in its earliest and agreed form. However, the Tribunal did see a document purporting to replace these earlier terms and conditions, that document being dated July 2005 and issued by the respondent. The claimant had refused to sign acceptance of these July 2005 terms as he was not entirely happy with the content of that statement.  

	(b)	The employment of the claimant appears to have been largely uneventful until comparatively recent times when, in common with a number of other commercial enterprises locally engaged in the textile industry, the company experienced a considerable decline in business orders and manufacturing requirements on account of previously reliable customers choosing, for economic reasons, to source finished goods overseas.  There were other significant commercial pressures on the company, in addition.  

	(c)	The respondent company was in a not untypical but nonetheless unfortunate position, commercially, it that it was dependent upon continuance of orders from a small number of key customers, notably the firms of Swish UK and Cleland McIver Limited.  The respondent supplied these two companies with finished blind fabrics.  From the start of 2005 onwards there were certain contractual and supply difficulties particularly with Cleland McIver. In February 2006 the respondent's Director, Mr Coburn, was informed that due to commercial pressures from an end-user, Cleland McIver found that the products supplied to that firm by the respondent were not commercially viable.  On top of that came the information that Swish UK was intending to close all of its UK manufacturing plant.  This information, by a rather unfortunate coincidence, all came to the respondent's attention at the same time, that is to say on or about 7 February 2006.  

	(d)	The following day the respondent's Directors, seeing a need to take urgent professional advice, met with representatives from Grant Thornton UK LLP. After undertaking an analysis of the situation and receiving the advice of Grant Thornton, the respondent's Directors opted to undertake a Company Voluntary Arrangement.  On 9 February 2006 the respondent took the decision, on professional advice, that it would cease trading immediately and that it would forthwith propose the Company Voluntary Arrangement to its creditors.  On 9 February 2006 the respondent’s management met with Transport & General Workers Union, that Union representing a significant section of the workforce.  Contact was also made that day with the Trade Union, AMICUS, which Union represented a considerably smaller section of the workforce.

	(e)	An announcement was made by the respondent to all employees on the afternoon of 9 February 2006. All employees were informed that the respondent's Directors and all staff and employees would have to be made redundant.  Representatives of Grant Thornton were present at the meeting held that day in order to answer any questions posed by employees.  

	(f)	All the respondent's employees were paid up to 10 February 2006 and the invitation was extended to all that, although they did not need to attend work that day, representatives of Grant Thornton would be present together with an official from Transport & General Workers Union to assist with any queries.  

	(g)	As he was a key member of the respondent’s senior workforce, the claimant, together with a small number of other key persons, was asked to work on after 9 February 2006; the claimant’s contract was not terminated by the respondent until 21 February 2006.  The reason for that request being made to a small number of key staff to continue working for a further brief period of time was that, in the context of the Company Voluntary Arrangement, certain specific procedures had to be carried out to ensure that contracts and stock were properly dealt with by these senior personnel.  

	(h)	There was no individual warning of, or consultation with, the claimant. However, the claimant in his position of seniority would have certainly been aware of the general commercial pressures under which the respondent company was labouring throughout 2005 and up to February 2006. The claimant would no doubt have been entirely conversant with the particular events leading up to the decision being taken to pursue a Company Voluntary Arrangement.  

	(i)	After the termination of his contract on 21 February 2006, the claimant applied to Redundancy Payments Service. As was confirmed to the Tribunal by the representative from Redundancy Payments Service, the claimant was paid a redundancy payment and pay in lieu of notice.  A letter of 7 April 2006 to the claimant from Redundancy Payments Service confirmed that the redundancy payment was £4,495.00, based on the applicable statutory maximum for a week’s pay of £290.00 with the appropriate multiplier dependant on the claimant’s age and length of service. A letter of 5 May 2006 from Redundancy Payments Service to the claimant confirmed that holiday pay at a net amount of £68.86 was payable, taking account of 1.74 unpaid days with appropriate deductions for Tax and National Insurance contributions. In addition, a further letter from Redundancy Payments Service to the claimant dated 26 May 2006 confirmed that the claim for pay in lieu of notice was for 12 weeks at a figure of £667.74 per week and, taking into account Jobseeker’s Allowance claimed, tax at basic rate and, then, applying the statutory maximum weekly pay limit of £280.00, a figure of £3,360.00 was payable in respect of pay in lieu of notice. These foregoing sums were all duly paid to the claimant by Redundancy Payments Service.

	(j)	At the time of termination of contract the claimant was paid an equivalent of £2,893.53 per month gross pay and his average take home pay was £1,878.11 per month, equivalent to, respectively, £667.74 and £433.41 per week.

	(k)	The claimant contended that he was entitled to compensation for health insurance premiums, life cover premiums and pension contributions.  The Tribunal will comment further on these claims below.

	(l)	The Tribunal did not need to determine any further material findings of fact in respect of its decision in this case.

THE APPLICABLE LAW

 6.	The Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) provides at Article 216 for the duty of an employer to consult with representatives of employees.  Article 216 provides that where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals.  Article 216(2) provides that the consultation shall begin in good time and in any event (where it is proposed to dismiss less than 100 employees) at least 30 days before the first of the dismissals takes effect.  The appropriate representatives of any affected employees are, if the employees are of a description in respect of which an independent trade union is recognised by the employer, representatives of the trade union, otherwise employee representatives as provided for by Article 216 (3) (b) (that is to say appointed or elected in accordance with stated procedures). Article 216(4) provides that the consultation shall include consultation about ways of (a) avoiding the dismissals, (b) reducing the numbers of employees to be dismissed, and (c) mitigating the consequences of the dismissals, and shall be undertaken by the employer with a view to reaching agreement with the appropriate representatives.

7.	Article 217 of the 1996 Order provides that when an employer has failed to comply (inter alia) with any requirement of Article 216, a complaint may be presented to an Industrial Tribunal by an employee who has been dismissed as redundant.  If a Tribunal finds the complaint well founded it shall make a declaration to that effect and may also make a protective award.  A protective award may be made by the Tribunal by ordering the employer to pay remuneration to the dismissed employee for the protected period. That is a period which begins (or would begin in the circumstances of this case) with the date upon which the dismissal of the claimant took place and continues for such a length as the Tribunal determines to be just and equitable in all the circumstances having regard to the seriousness of the employer’s default in complying with the requirements of Article 216.

8.	Article 174 of the 1996 Order, insofar as material, provides that an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to (a) the fact that his employer has ceased or intends to cease (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed.  The amount of the redundancy payment is calculated in accordance with Article 197 of the 1996 Order.

9.	The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 ("the 1994 Order") provides at Article 3 that proceedings might be brought before an Industrial Tribunal in respect of a claim of an employee for the recovery of damages or any other sum (save damages for personal injuries) where the claim arises or is outstanding on the termination of the employee's employment.  Thus, under this provision, an employee may bring a claim for pay in lieu of notice outstanding on termination of a contract, or indeed for any other contractual sum or sums claimed as properly due on termination.

THE TRIBUNAL’S DETERMINATION

10.	In this case the Tribunal sees the respondent company adversely affected, as have been so many in this particular sector of industry in recent times, by a significant decline in business brought about by competition from other regions. The significant difficulty appears to be the dependence upon a small number of key customers where, once the business of those key customers is withdrawn, or threatened to be withdrawn, the company will experience quite significant adverse consequences. In many cases in recent times, this has led to businesses having to cease trading entirely.  Here, in 2005, the respondent experienced difficulties with one of its key customers. Endeavours were made throughout that year to sustain the business. However, notwithstanding these difficulties, the respondent managed to continue trading. However in the early part of 2006 a point was reached when that was to change. Information came to the attention of the respondent's management on 7 February 2006 that caused it, quite prudently and properly, to take professional advice.  

11.	The firm of Grant Thornton, a significant and experienced firm of licensed insolvency practitioners and business advisers, met with the senior management of the respondent. Being, it must be presumed, fully instructed as to all material considerations, Grant Thornton advised the directors of the respondent to take the course of instituting a Company Voluntary Arrangement.  The professional advice given to the directors was that the respondent could not continue to trade. A decision was taken on the strength of this advice that the entire workforce, save for a small number of key employees, would have to be dismissed at the earliest date. There was given due and proper notification of the principal recognised trades union, Transport & General Workers Union and on 9 February 2006 the respondent’s management met with Transport & General Workers Union and contact was also made that day with the Trade Union, AMICUS, representing a considerably smaller section of the workforce.  The entire workforce was then made redundant with effect from 10 February 2006 save for a small number of key employees, including the claimant, who had specified tasks to perform prior to their dismissals taking effect.  In effect, therefore, the claimant was provided with 1 ½ weeks’ notice of his dismissal and the dismissal proceeded on 21 February 2006.  

12.	The Tribunal has no doubt that the claimant, in his senior position, would have been intimately aware of the risk and of the potential for the occurrence of what in fact did come to pass in February 2006.  The claimant has endeavoured to argue before this Tribunal that the loss of the Swish UK and the Cleland McIver business to the respondent was not such an immediate and a catastrophic loss of business as would have prevented the respondent’s business activities continuing for a period of time.  The Tribunal, as will hopefully be readily understood, is not in a position to make any judgment on that. However, the directors of the respondent, in the Tribunal’s view entirely appropriately, took expert professional advice. As a result of that advice the respondent ceased trading. The reason for the alacrity of that decision, it must be presumed, was to avoid the potential exposure of the directors in a personal capacity to individual liability.  The decision to cease trading immediately seems to be an entirely reasonable one, in the Tribunal’s opinion.  

13.	It also seems to have been a reasonable decision, insofar as the Tribunal understands the circumstances, to allow a ‘skeleton staff’ to remain on for a brief period of time in order to conduct any essential tasks and dealings that needed to be conducted prior to the final dismissal of any residual employees on 21 February 2006. Included amongst those latter was, of course, the claimant.  The Tribunal therefore cannot accept the claimant’s contention that the business ought to have continued and that the claimant is entitled to remuneration in respect of any such continuance.  

14.	It is clearly the case that the circumstances facing the business at the time of the dismissal of the claimant fall fairly and squarely within the definition of a redundancy as provided for by Article 174 of the 1996 Order.

15.	The claimant has claimed that there was a breach of the duty to consult imposed upon an employer under Article 216 of the 1996 Order.  The respondent’s management did consult with Transport & General Workers Union and also made an attempt to consult with the Trade Union AMICUS. There appear to have been no employee representatives appointed in accordance with Article 216(3) of the 1996 Order.  There appears to have been no individual consultation with the claimant.  The claimant’s contention is that there could have been individual consultation with him, if not before, at least in the period after the initial dismissals on 10 February 2006 and prior to his own final dismissal on 21 February 2006.  The respondent did concede in the written submissions that there was no individual consultation with the claimant.  

16.	The respondent’s argument in submissions in respect of consultation was twofold.  First of all, it was argued on behalf of the respondent that, whilst the duty to consult does arise where an employer is proposing to dismiss as redundant 20 or more employees, the respondent, in the particular circumstances of the withdrawal of business in the hitherto unforeseen manner as notified on 7 February 2006, did not ‘propose’ any redundancies (which word ‘propose’ is used in Article 216)  but was forced to cease trading with immediate effect on foot of advice received in order to avoid breach of statutory duty on the part of the directors.  Secondly, the respondent relied on Article 216(9) of the 1996 Order which provides that, if in any case there are special circumstances which render it not reasonably practicable for the employer to comply with the requirement of paragraphs (2), (4) or (6) of Article 216 (i.e. the consultation provisions), the employer shall take all such steps towards compliance with that requirement as are reasonably practicable in those circumstances.  The respondent contended that there were indeed such special circumstances and that it took all reasonably practicable steps to comply.  Thus, the respondent argued that it did contact the two trade unions in question. However, events were moving very quickly; it was not reasonably practicable to comply with any further requirements set out in Article 216.

17.	Looking at the facts of the matter and dealing with the respondent's arguments as above, the Tribunal cannot accept the submission that the word ‘propose’ in Article 216 is entitled to the interpretation apparently sought to be placed upon it by the respondent’s representative in the submissions.  It seems to be contended that the word ‘propose’ (i.e. a voluntary and deliberate proposed action taken though choice) is to be contrasted with a situation where events force redundancies upon an employer (and thus the events deprive the employer of the capacity to take a voluntary and deliberate proposed action taken though choice).  The Tribunal cannot take the view that that is a proper construction of Article 216, as is mentioned below.

18.	However, turning to the second limb of the respondent's argument and looking at Article 216(9) of the 1996 Order, it is clear that the directors of the respondent sought advice in a timely fashion, having been faced with the bad news which was received on 7 February 2006. Good and proper advice was secured. Endeavours were made, again in a timely fashion, to consult with the main trades union, Transport & General Workers Union, and also an endeavour was made to contact AMICUS for further consultation.  Events were no doubt moving very fast. The respondent's directors had a considerable number of tasks to attend to.  The directors would have been quite aware of the fact that the claimant was not represented by a trades union. However, an employer cannot possibly force any effected employees to elect a representative.  He can do more than issue, in good time, an invitation to elect representatives.  [See in this regard the useful commentary in Harvey on Industrial Relations and Employment Law, Division E (2529)].  

19.	In this case it has been submitted on behalf of the respondent that there are special circumstances in connection with the company’s insolvency.  Clearly, if a winding up order had been made by a Court (as opposed to a Company Voluntary Arrangement which applies in the circumstances of this case), it might be arguable that the employer did not propose any dismissals but that the decision was taken out of the employer’s hand by such a Court Order (see the case of Re Hartlebury Printers Limited [1992] IRLR 516).  However, on the facts of this case, the dismissal was not as a result of an intervening Court Order. It was a decision taken by the directors of the respondent company as an existing entity. There remained, therefore, in principle, the duty to consult, as would have been the case in regard to any other dismissal.  Insolvency, per se, is not an excuse for failure to consult but might constitute, dependant upon the particular facts of any case, a special circumstance which might properly be taken into account by the Tribunal. 

20.	Taking account of the foregoing and of the particular facts of this case, the Tribunal does determine that the events surrounding the sudden decision having to be taken to cease trading do constitute a special circumstance where the argument is possibly available to the respondent company as to the reasonable practicability of consultation.

21.	The obligation to consult is not an absolute one but is modified by the argument that there did apply special circumstances, on the particular facts. The 1996 Order offers no statutory definition as to what might constitute special circumstances. Most of the determined cases rather unsurprisingly appear to concern insolvency. In the case of Clarks of Hove Ltd v Bakers' Union [1979] IRLR 366, CA the Court of Appeal in England suggested that a sudden intervening event (in which case there might be adjudged to be special circumstances) is to be contrasted with a gradual run down of a business (in which case there will not be). Clearly each case shall depend upon its own particular facts. 

22.	In the particular circumstances of this case, the respondent has argued special circumstances and that, in consulting in the limited time available with the main trade union and making the announcement of what was to transpire, that demonstrates such compliance as was reasonably practicable.  In determining whether or not that argument is sustainable, the Tribunal looks to the purpose and intent of the consultation requirement (see Article 216(4) of the 1996 Order). That includes consultation about ways of avoiding the dismissals, reducing the numbers of employees to be dismissed, and mitigating in the consequences of the dismissal. This shall be undertaken with a view to reaching agreement with the appropriate representatives.  On the facts of this case, the Tribunal cannot see how anything could have been achieved as far as the circumstances of the claimant were concerned, especially so in view of the fact that there was already existing consultation with one trade union and an endeavour was made to consult with another. Notwithstanding this, every single member of the workforce was dismissed either with effect from 10 February 2006 or, in the case of a few, 21 February 2006.  On balance, and taking full account of the facts, the Tribunal determines that the respondent can avail of Article 216 (9) of the 1996 Order. Accordingly, the making of a protective award in this case in favour of the claimant would not be appropriate and that claim is dismissed by the Tribunal.

23.	The claimant complained of having been unfairly dismissed.  He has contended that the failure to warn and to consult has rendered the dismissal unfair. He has also argued that he ought not to have been dismissed in the manner in which he was dismissed and at the time the dismissal occurred.  Here the Tribunal is inevitably confined to the arguments actually advanced by the claimant in his case, in the absence of any express defence to any complaint of unfair dismissal in the written submissions received on behalf of the respondent company (save perhaps insofar as these might be seen to be contained in the submissions concerning consultation).  The claimant did not elaborate in his evidence and submissions to the Tribunal upon the issue of unfair dismissal but simply mentioned in his testimony to the Tribunal that this was incorporated in his case.  

24.	The Tribunal accordingly takes it that the claimant’s case is grounded upon the argument that there was a lack of adequate warning and consultation, resulting in the decision to dismiss him being unfair.  Redundancy is however a potentially fair reason for dismissal (see Article 130 (2) (c) of the 1996 Order) and that reason has been advanced and indeed has been accepted by the claimant as being the true reason for his dismissal.  However, the claimant, as the Tribunal understands it, is arguing that the dismissal was procedurally unfair and that the employment ought to have subsisted for a further period of time.  However, the claimant does accept that the employment would have come to an end on grounds of redundancy a comparatively short time after the actual date of dismissal.  The claimant has not argued unfair selection for redundancy. The Tribunal is reluctant to fill in a case where the claimant has failed to do so, but his case might to be based on the considerations set out by the Employment Appeals Tribunal in England in the case of Williams -v- Compair Maxam Limited [1982] IRLR 83 which considerations have been expressly approved by the Court of Appeal in Northern Ireland in the case of Robinson -v- Carrickfergus Borough Council [1983] IRLR 122.  These principles are not principles of law but are rather standards of behaviour which may alter over time and in accordance with the facts of any case. 

25.	The principles in the Williams case are that, in summary, an employer will seek to give as much warning as possible; the employer will consult with the union; the employer will seek to ensure that selection is made fairly in accordance with agreed and established criteria; and the employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.  The importance of these procedural safeguards was strongly endorsed by the House of Lords in Polkey v A E Dayton Services Ltd [1988] ICR 142.  However, on the particular facts of the case, the Tribunal determines that the Williams standards were incapable of being applied to any material extent in that the decision had to be taken forthwith to cease trading and there was no real opportunity to take the procedural steps that are normally required to be taken.  Consequently, the Tribunal can discern nothing that would render the claimant’s dismissal for the grounds indicated unfair, taking account of the principles emerging from both statute and common law.  The claimant's claim of unfair dismissal is dismissed by the Tribunal.

26.	The claimant also claimed breach of contract and financial entitlements flowing therefrom.  The claimant had been paid his basic statutory entitlements by Redundancy Payments Service.  These payments were computed, as indicated above, from the statutory maxima then applicable.  However, the claimant would have had contractual rights going beyond that. 

27.	The claimant would have been entitled to pay in lieu of notice for the unexpired portion of the claimant’s contractual or statutory notice.  The claimant was given actual notice of dismissal on 9 February 2006 and his last day of employment was 21 February 2006.  He was therefore given effectively 8 working days' notice of termination.  The Tribunal is unable to conclude from the facts that the claimant was entitled to any contractual notice beyond that provided for by statute under Article 118 of the 1996 Order, where the claimant would have been entitled to one week’s notice for each year of continuous employment, up to a maximum of 12 weeks.  

28.	In this case the claimant would have been entitled to the full statutory 12 weeks' notice or to pay in lieu of notice.  He received from Redundancy Payments Service a figure of £3,360.00, calculated on the statutory maximum of £280.00 per week.  Based on a gross wage of £667.74 per week, the 12 weeks’ notice would have amounted to £8,012.88, as was confirmed by the letter from Redundancy Payments Service of 26 May 2006.  However, that is the gross wage figure.  In the absence of evidence of precise wages documentation, the Tribunal is inclined to accept the figure of £433.41 for net weekly wages.  The Tribunal therefore forms the conclusion that the difference between the amount the claimant would have received had he been paid full pay in lieu of notice (£5,200.92), and that actually received by him from Redundancy Payments Service (£3,360.00), amounts to a figure of £1,840.92. That figure would be the contractual excess wages due by the respondent company to the claimant in respect of pay in lieu of notice, that is to say save for the 1 ½ weeks’ notice actually given (which indeed it must be said appears not to have been taken into account by Redundancy Payments Service).  Deducted from that figure would therefore have to be a sum which the Tribunal takes as being the equivalent to 1 ½ weeks’ net pay, which the Tribunal computes at a figure of £650.11.  That leaves a net balance due by the respondent to the claimant amounting to £1,190.81 for pay in lieu of notice.

29.		It appears that the claimant was fully reimbursed by Redundancy Payments Service for the 1.74 days holiday pay due to him for untaken leave (see letter of 5 May 2006 from Redundancy Payments Service). That leaves therefore only the claimant’s contention that he was entitled to further sums in respect of the company’s contributions to pension and life insurance.  Regrettably, no documentary evidence was produced to the Tribunal in regard to that.  The Tribunal did note the claimant’s oral evidence and has taken account of the written submissions before the Tribunal on behalf of the respondent.  The only written contractual document before the Tribunal is the draft statement of terms and conditions dated July 2005 where contained therein the only comments on ‘pension’ and ‘fringe benefits’ are that the company did operate a private pension scheme and it is stated that  ‘other benefits’ associated with the employment may be available or withdrawn at the discretion of the employer.  In the response to the claim, the respondent’s representative did confirm that the company did usually made pension contributions and that these were not paid during the notice period.  The respondent has however contended that the claimant would not be entitled to these payments. These appear not to have been made. That seems to constitute a breach of the contract during the notice period. The respondent has failed to provide detailed argument to the contrary.

30.	In the normal course of things the claimant would have been given 12 weeks' notice and the Tribunal would be entitled to conclude that these contributions would have continued throughout that period whilst the claimant was still an employee of the respondent company.  In this case, the Tribunal feels that the claimant would be entitled to that contractual benefit for the period of 12 weeks in question. Based solely (and perhaps regrettably for the Tribunal would have been better placed had it seen some documentation) upon the claimant’s oral evidence to the Tribunal, these pension employer contributions amounted to monthly payments of £127.00 each month to Scottish Equitable Life Assurance Society. It seems that that monthly premium also included an element of life cover.  The claimant would therefore be entitled to a sum in respect of employer’s contributions to the Scottish Equitable Pension Arrangement equivalent to £351.69, for that 12 week period.

31.	In respect of the claimant’s claim for health insurance and life cover as separate items, for want of cogent evidence the Tribunal is quite unable to make any determination in the claimant’s favour in that regard. These claims are dismissed by the Tribunal.

32.	The Tribunal therefore finds the claimant’s complaints, in part, made out and well founded and the Tribunal Orders the respondent company to pay to the claimant the sum of £1,190.81 in respect of pay in lieu of notice and the sum of £351.69 by way of employer’s contribution to the Scottish Equitable Pension, that being in total the sum of £1,542.50.  The foregoing findings on the Tribunal's part are by unanimous decision.

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

          

Chairman:

Date and place of hearing:	20 September 2006, Belfast.		

Date decision recorded in register and issued to parties: