THE INDUSTRIAL TRIBUNALS

CASE REF:	1657/10

CLAIMANT:			Stephen Raymond McDonald

RESPONDENT:		Mervyn McAllister

DECISION 
The unanimous decision of the tribunal is that the claimant is entitled to a payment of £1,173.53, comprising £513.53 in respect of holiday pay and a penalty of £660 in respect of the respondent’s failure to provide written particulars of employment.  The respondent is directed to pay the claimant £1,173.53.

Constitution of Tribunal:
Chairman:			Mr N Kelly
Members:			Mr R Black
				Mr A Crawford

Appearances:
The claimant appeared in person.

The respondent did not enter a response, did not appear and was not represented.

1.	The claimant was employed by the respondent as head chef in the Marine Hotel, Ballycastle from 18 August 2009 to 25 March 2010.

2.	He was laid off without pay from 7 January 2010 to 25 March 2010 when he resigned.  There was no written contract of employment and there was no oral contractual term or implied contractual term which permitted the respondent to lay off the claimant in these circumstances.

3.	The claim was for holiday pay.  The oral agreement was for 28 days leave per annum.  The leave year was the financial year and the claimant had taken five days’ leave.

4.	The claimant is entitled to a payment of £513.53 in respect of untaken annual leave calculated as follows:-

Rate of accrual for holiday leave 	142 x 28 = 10.9 days
365
	Less 5 days taken				               = 5.9 days

Average net daily pay =		£ 87.04

	Total  	5.9 x £87.04 =	£513.53

5.	The claimant was never provided with written particulars of employment as required by Article 33 of the Employment Rights (NI) Order 1996.  The claimant had made repeated requests for such particulars.

Under Article 27 of the Employment (NI) Order 2007 the tribunal has power to impose a penalty in such circumstances of between two and four weeks’ pay calculated in accordance with the 1996 Order and subject to the statutory cap imposed by Article 23 of that Order.

6.	The tribunal, in the circumstances of this case, imposes a penalty of two weeks’ pay, subject to the statutory cap of £330 per week, ie £660.

7.	The total payable by the respondent to the claimant is £1,173.53.

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

Chairman:

Date and place of hearing:	7 September 2010, Belfast.	

Date decision recorded in register and issued to parties: