Savage v L & M Fashions Ireland Ltd [2010] NIIT 7282

THE INDUSTRIAL TRIBUNALS

CASE REF: 7282/09

CLAIMANT: Bridie Savage

RESPONDENT: L & M Fashions Ireland Ltd

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent. The respondent is to pay the claimant compensation of £16,216.00.

Constitution of Tribunal:

Chairman: Mrs M Watson

Members: Mrs E Gilmartin

Mr P Archer

Appearances:

The claimant was represented by Mr P Hopkins, Barrister-at-Law, instructed by The Elliott Trainor Partnership, Solicitors.

The respondent did not appear and was not represented.

Preliminary Issue

1. The originating claim form in this case had included claims of disability discrimination and unlawful deductions from wages as well as the claim for unfair dismissal.

2. A Case Management Discussion took place on 20 May 2010 at which the respondent was represented by a Solicitor and Counsel. However, the tribunal office was notified by letter dated 7 September 2010 from the Solicitor that they were coming off record as they had been unable to obtain proper instructions from the respondent.

3. Both parties and their representatives were notified by letter dated 2 June 2010 of the date of this hearing. The respondent had not contacted the tribunal to indicate that it would not attend.

4. The tribunal decided to dispose of the proceedings under Rule 27 (5) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland 2005. As required by Rule 27(6), the tribunal took into account all information made available by the parties.

Issues for determination

5. As stated above, the originating claim form had included claims of disability discrimination and unlawful deduction of wages. These claims were withdrawn at the outset of the hearing by Mr Hopkins. With regard to the claim of unfair dismissal, the respondent had stated in its response that the claimant had named the wrong respondent. She had given the name of the respondent as L&M Fashions but the response stated that this company had ceased to exist.

6. The claimant gave evidence to the tribunal that she began to work as a garment presser at 25 Main Street, Belleeks in June 1985. The company was then called SAM Manufacturing Company. A cheque from that company to the claimant dated 6 October 2000 was produced to the tribunal. It was signed E. Galloghy. The claimant explained that this was Elizabeth Galloghy, known as Lillian to the employees, the owner of the business and responsible for daily management.

7. The claimant was made redundant from this employment in 2000 when it closed. She was subsequently re-employed by L & M Fashions Ltd in the same post, in the same premises, in January 2001. Her manager was still Lillian Galloghy. As far as she was aware, the claimant continued in that employment with L & M Fashions Ltd until the date of termination of her employment in July 2009.

8. The claimant’s solicitor carried out a search in Company House after receipt of the response form and found that the name of the claimant’s employer had changed from in or about May 2009 to L & M Fashions Ireland Ltd. The claimant had not been informed of any such change. The name of the respondent in these proceedings was changed by Order of a tribunal on 8 March 2010. No objection was made to that Order. This tribunal was satisfied, having seen documentation provided by the claimant, that there had been no break in the continuity of the claimant’s employment from January 2001.

9. The claimant gave oral evidence that she had been certified as unfit for work for four weeks by her doctor on 26 June 2009. She telephoned Lillian Galloghy who said “I take it you’re leaving. I will get someone else to cover for you. I will get another doctor to look at you.”

10. The claimant had great difficulty getting any statutory sick pay from the respondent. On 27 July 2009, the claimant attended her doctor who again certified she was unfit for work. Mrs Galloghy telephoned the claimant on 28 July 2009 and told the claimant that she had to decide between being sick or being employed. The claimant considered herself dismissed from that time. Mrs Galloghy told the claimant to send further sickness certification to Belfast. The respondent eventually paid statutory sick pay to the claimant up to 28 July 2009. The claimant applied for Employment and Support Allowance but was not paid until 9 November 2009.

11. In a letter dated 30 July 2009, the claimant’s solicitor wrote to the respondent and initiated the Statutory Grievance Procedure. No acknowledgement or response was received.

12. At paragraph 3.1 of the response form, the respondent stated that the claimant was not employed by the respondent but had been ‘employed by L & M Fashions Ireland since April 2009.’ Further, at paragraph 3.5, in response to a query about the grievance procedure, the response given is as follows:-

“Solicitors letter received by Mr & Mrs Galloghy, addressed to L & M Fashions Ltd. The contents of which were not accepted and in any event same was not addressed to the appropriate employer.”

13. At paragraph 5.2 of the response, the employer stated that the claim would be resisted on the grounds that; “The claimant has issued proceedings against a company that no longer exists and has not traded since April 2009. Regardless the claimant has not been unfairly dismissed. In fact the claimant was not dismissed. The claimant was receiving sick pay until the relevant sick notes are (sic) no longer provided. The claimant made no further contact in relation to same.”

14. During her employment, the claimant worked 32 hours per week and was paid £150 net, £167 gross. She was employed between January 2001 until she considered herself constructively dismissed on 28 July 2009, a period of over 8 years.

Relevant Law

15. The Employment Rights (Northern Ireland) Order 1996 (as amended) provides at Article 126 that employees have the right not to be unfairly dismissed. This right was added to by the Employment (NI) Order 2003 which introduced the statutory Dispute Resolution Procedure. Where this procedure has not been followed by an employer, Article 130A of the 1996 Order now provides that such employees are deemed to have been automatically unfairly dismissed.

16. The 2003 Order also provides at Article 17 (3) that where the failure to follow the procedure is due to the actions of the employer, a tribunal may increase the amount of compensation payable to the employee by 10 to 50% if it is just and equitable to do so.

17. Under Article 118 of the 1996 Order, employers are required to give one week’s notice for each week of employment up to a maximum of 12 weeks.

18. The Transfer of Undertakings (Protection of Employment) Regulations 2006 provides that when a business transfers from one owner to another, all employees transfer with it and their terms and conditions remain the same.

Tribunal Determination

19. The tribunal was satisfied that the claimant’s employment transferred to L & M Fashions Ireland Ltd as the only change at that time was to the name of the legal entity which employed her. The claimant’s employment contract and all her employment rights transferred at that date under TUPE Regulations to L & M Fashions Ireland Ltd as did the duties of the employer.

20. The tribunal noted that the information provided by the respondent in the response documentation to this tribunal did not deny the substance of the claim in the originating claim form. It confirmed that the claimant had provided sick certification and was paid statutory sick pay by them as her employers at that time.

21. The respondent has also confirmed that they received the statutory grievance letter from the claimant’s solicitor but made no response. The tribunal is satisfied that if the respondent believed that there was no employment relationship between them and the claimant that they would have so indicated in response to that letter which set out clearly the claimant’s subsequent claim to this tribunal.

22. The tribunal is satisfied that the respondent dismissed the claimant on 28 July 2009 by telling her that she should send her sickness certification to Belfast if she did not attend work that day or subsequently. Despite receiving a grievance letter from the claimant’s solicitor, the respondent did not meet with the claimant or take any of the actions required of them as employers by the 2003 Order. For that reason, the tribunal considers that it is just and equitable in such circumstances to increase the compensation payable to the claimant by 50%.

23. Compensation payable by the respondent to the claimant is assessed as follows;-

(A) Basic Award

8 weeks gross pay = £167 x 8 = £1,336.00

(B) Compensatory Award

Loss of wages from dismissal to date of hearing

28 July 2009 until 4 October 2010 =

61 weeks @ £150 = £ 9,150.00

Uplift of 50% = £4, 575.00

Total = £13,725.00

8 weeks @ £150 = £1,200.00

Total compensation payable (A) + (B) +(C) = £16,261.00

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

Chairman:

Date and place of hearing: 4 October 2010, Belfast.

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Savage v L & M Fashions Ireland Ltd [2010] NIIT 7282_09IT (14 October 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/7282_09IT.html Cite as: [2010] NIIT 7282_09IT, [2010] NIIT 7282_9IT

Industrial Tribunals Northern Ireland Decisions