THE INDUSTRIAL TRIBUNALS

CASE REF:    2196/10

CLAIMANT:	Margaret McCullough

RESPONDENTS:	1.	Longstone Community Playgroup
	2.	Jane Thompson
	3.	Leigh-Anne Bovill

DECISION

The unanimous decision of the tribunal is that the claimant is entitled to 12 weeks’ notice pay amounting to £1,968.00 and to a redundancy payment of £2,024.00.

Constitution of Tribunal:

Chairman:	Mr Uel A Crothers

Members:	Ms Margaret Galloway
	Mr Ian Carroll

Appearances:

The claimant appeared and was represented by Mr Adams of Citizens Advice Bureau.

The respondents did not appear and were not represented.  The second and third named respondents had presented responses to the claim and furnished written representations prior to the hearing, which included reference to the first named respondent.

THE CLAIM

1.	The claimant claimed that she had been unfairly dismissed by the first named respondent (“The Playgroup”).  The claimant also claimed an amount for a retainer fee under her contract of employment together with a sum in respect of notice pay.  The claimant withdrew her claim of unfair dismissal from before the tribunal.

THE ISSUES

2.	The issues before the Tribunal were as follows:-

	1.	Whether the claimant was entitled to a sum in respect of notice pay.

	2.	Whether the claimant was entitled to a redundancy payment.

	3.	Whether the claimant was entitled to an amount by way of a retainer fee under her contract of employment.

SOURCES OF EVIDENCE

3.	The tribunal heard evidence from the claimant and considered the responses entered by the second and third named respondents together with their written representations.

FINDINGS OF FACT

4.	Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact, on the balance of probabilities:-

	(i)	The claimant was employed by The Playgroup from 1 October 1997.  In correspondence sent to the claimant dated 9 July 2010 and signed by the Chairperson, Jane Thompson, it is stated as follows:-

	“Longstone Community Playgroup
82 Carnearney Rd
Ahoghill
Ballymena

9th July 2010
	Dear Margaret,

	Following a meeting with the Early Years Funding Team on Tuesday 6th July, at which you were present, it has been decided that due to lack of children for September 2010 and a lack of funding from the Early Years Team we have no option but to close the Playgroup.

	The only way in which the group may have been able to remain in place would have been to open on a part time basis but after discussing this with yourself and Brenda you have both, understandably, found this an unsuitable option.

	It is with regret that I am writing you this letter confirming your position in Longstone Community Playgroup is no longer available.

	I’d like to take this opportunity to thank you for your service to the Playgroup and to let you know that it won’t just be the Playgroup that will be missed in the community but that both yourself and Brenda will be sorely missed by the Playgroup Committee, School and all the children who were a part of the Playgroup.

	Yours sincerely

	Jane Thompson  (chairperson)”

	(ii)	In correspondence of 14 July 2010 the claimant claimed 10½ weeks redundancy pay together with 12 weeks notice pay and a retainer fee.  Correspondence from Longstone Playgroup Committee, dated 23 July 2010 to the claimant states inter alia:-

		“As you are aware the Playgroup was a non-profitable business/charity which means there are no funds available to cover redundancy and notice.  We are seeking legal advice on the appropriate steps to take to resolve this matter.

		You shall receive your retainer within the next few weeks.”

	(iii)	The claimant raised a grievance in writing on 29 July 2010.  Further correspondence to the claimant from Longstone Playgroup Committee, dated 11 August 2010 deals with the points in her grievance and states that the committee would not be paying the retainer as per Paragraph 4 of her contract as “payment is purely at the discretion of the committee and will be paid subject to the Playgroup having funds.  Unfortunately, as you have been made well aware throughout the year, funds are not available and any funds that do become available will possibly be going to other payment/s you require”.

	(iv)	Clause 4 of the claimant’s contract of employment relating to a retainer payment states that “this payment is purely at the discretion of the Committee and will be subject to the Playgroup having sufficient funds at that time”.

	(v)	The tribunal is satisfied that the claimant was made redundant and that she did not receive a notice of payment.  The Tribunal is also satisfied that the Playgroup was not in a financial position to meet any such payments.

	(vi)	The claimant’s date of birth is 22 February 1978.  Her gross weekly wages was £184.00 (gross), £164.00 net.

THE LAW

5.	(i)	Article 170 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) states as follows:-

		“170. -	(1)	An employer shall pay a redundancy payment to any employee of his if the employee:-

				a.	Is dismissed by the employer by reason of redundancy, …

			(2)	Paragraph (1) has effect subject to the following provisions of this Part (including, in particular, Articles 175 - 179, 184 - 187, 190 - 196 and 199).”

	(ii)	Article 180(5) of the Order provides as follows:-

		“Where  -

		a.	the contract of employment is terminated by the employer;

		b.	the notice required by Article 118 to be given by an employer would, if duly given on the material date, expire on a date later than the relevant date (as defined by the previous provisions of this Article).

			For the purposes of Articles 23(3), 190 and 197(1) the later date is the relevant date.”

	(iii)	Article 180(6) provides that “the material date” means the date when notice of termination was given by the employer, or where no notice was given, the date when the contract of employment was terminated by the employer.

	(iv)	Article 197 of the Order provides for the amount of redundancy payment.

	(v)	The provisions in relation to breach of contract are contained in the Industrial Tribunal’s Extension of Jurisdiction Order (Northern Ireland) 1994.

	(vi)	The tribunal also considered, insofar as relevant, the section in the order relating to the right not to suffer unauthorised deductions.

CONCLUSIONS

6.	Having applied the relevant principles of law to the findings of fact, the tribunal concludes that the claimant is entitled to 12 weeks notice pay (£164.00  x  12)  =  £1,968.00.  In relation to a redundancy payment, and taking into account Article 180(5) and (6) of the Order, the claimant had 12 complete years of service at the relevant date, which is 12 weeks subsequent to the calculation date for a week’s pay of 6 July 2010, ie, 28 September 2010.  She is therefore entitled to 11 weeks gross pay by way of redundancy payments (£184.00  x  11)  =  £2,024.00.

	The tribunal is not satisfied that she is legally entitled to a retainer fee under the terms of her employment.

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

Chairman:

Date and place of hearing:    4 January 2011, Belfast.

Date decision recorded in register and issued to parties: