864_06IT
Cardwell v Eurotile Marketing Limited [2008] NIIT 864_06IT (09 July 2008)
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THE INDUSTRIAL TRIBUNALS
CASE REF: 864/06
CLAIMANT: William Andrew Cardwell
RESPONDENT: Eurotile Marketing Limited
DECISION
The unanimous decision of the tribunal is that the claimant was not unlawfully dismissed and that the claimant did not have two years continuous employment with the respondent in order to qualify for a redundancy payment.
Constitution of Tribunal:
Chairman: Mrs Watson
Panel Members: Miss Graham
Mr Rosbotham
Appearances:
The claimant appeared in person
The respondent did not appear
- The tribunal was informed prior to the hearing that the respondent company in this case was now in receivership and would not appear. In addition, the claimant was no longer legally represented but would present his own case. The tribunal proceeded with the hearing under Rule 27 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. The claimant gave oral evidence and provided the tribunal with a bundle of supporting documentation which included material supplied by the respondent by way of discovery. The tribunal also took into consideration the contents of the respondent's reply to the originating application.
Issues For Determination
- There were two issues for the determination of the tribunal;
(1) Was the claimant unfairly dismissed by the respondent, and
(2) Did the claimant have two years continuous employment by the respondent in order to qualify for a redundancy payment.
Contentions of the Parties
- In his originating application, the claimant claimed that he had been employed by the respondent from 15 November 2003 as an Accounts Manager. He had been informed on 3 April 2006 that his position was at risk of redundancy and then told on 7 April 2006 that he was to leave that day. The respondent subsequently wrote to the claimant and informed him that his employment was terminated by reason of redundancy with effect from 30 April 2006.
- The respondent claimed that the claimant's employment with their company did not commence until 1 April 2005 and that for the previous 15 months, the claimant had been employed at their premises under a contract it had with Brightwater Agency. The claimant acknowledged that he had been employed by Brightwater Agency during that time but alleged that he had in addition been performing duties directly for the respondent. He therefore claimed that he had the required period of continuous employment with the respondent.
Relevant Legal Provisions
- Article 130 (2) (c) of the Employment Rights (Northern Ireland) Order 1996 provides that a dismissal may be justified if the employer can show that the reason for that dismissal is redundancy. In this case, the tribunal, after considering the oral evidence of the claimant and the documentation provided, was satisfied that the respondent company was seeking at the time to save costs and took the decision to reorganise their accounting practices in order to reduce staff costs in that area. As a result, the duties previously performed by the claimant were re-allocated and his post was redundant. The tribunal therefore find that the claimant was not unlawfully dismissed.
- The Employment Rights (Northern Ireland) Order 1996 (as amended) at Article 190, provides that an employee "does not have a right to a redundancy payment unless he has been continuously employed for a period of not less than two years ending with the relevant date."
Conclusions
- During the hearing, the claimant did not deny that he had gone to work for the respondent initially on foot of his employment with Brightwater Agency. However, the claimant told the tribunal that during that time, he also carried out work for the respondent and he provided the tribunal with copies of documents prepared for the Inland Revenue which named the respondent as his employer during the relevant period. The tribunal was satisfied that such documentation is not of itself determinative of an employment relationship. While there were, without doubt, occasions when the claimant performed duties for the respondent that were over and above those for which he was contracted to perform on behalf of Brightwater, the tribunal was not satisfied that the material before it was sufficient to enable it to conclude that such performance was conclusive of a direct employment relationship.
- The tribunal took into consideration the absence of any of the other characteristics of the employer/employee relationship as described in Harvey on Industrial Relations and Employment Law at A[551] (et seq.). In particular, the tribunal noted the absence of any apparent mutuality of obligation between the claimant and the respondent.
- In the case of James v London Borough of Greenwich [2008] EWCA Civ 35, the Court of Appeal held that where there is a question whether a contract of employment should be implied in such agency cases, the tribunal should look to the nature and actual terms of any contract(s) existing between all the parties. The tribunal find that the claimant went to work for the respondent on foot of his contract with Brightwater who, in turn, had their own agency contract with the respondents. This was the situation up until the claimant and the respondent entered into their own contract of employment on 1 April 2005.
- The tribunal concluded, regretfully, that while the claimant performed services for the respondent for which he was paid, his contract of employment prior to 1 April 2005 was with Brightwater Agency and that this previous period cannot be considered as a period of qualifying continuous employment with the respondent for redundancy payment purposes.
Chairman:
Date and place of hearing: 25 June 2008 at Belfast.
Date decision recorded in register and issued to parties:
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