THE INDUSTRIAL TRIBUNALS

CASE REF:    2200/11

CLAIMANT:	Michael Fitzpatrick

RESPONDENT:	Cassells Fresh Supplies Limited

DECISION

The decision of the tribunal (Chairman Sitting Alone) is that the claimant’s claims for holiday pay and notice pay are dismissed. The correct title of the respondent is Cassells Fresh Supplies Limited and the title of the proceedings is amended accordingly.

Constitution of Tribunal:

Chairman (Sitting Alone):   	Ms J Knight

Appearances:

The claimant appeared and represented himself.

The respondent was represented by Mr Kenneth Cassells, of the Respondent Company.

Issues to be determined by the Tribunal

1.	Whether the claimant is entitled to outstanding holiday pay.

2.	Whether the claimant is entitled to one weeks notice pay.

Evidence

The tribunal heard the oral evidence of the claimant, Mr Michael Fitzpatrick, Mr Kenneth Cassells, and Ms Lindsay McClure of the respondent.  The tribunal also considered documentation produced by the parties at the hearing, including extracts from the claimants’ work diary.  

Facts

1.	The claimant was employed by the respondent as Sales Manager from 8 January 2010 until his resignation on 12 September 2011.

2.	The claimant did not have any written terms and conditions of employment.  The claimant contended to the tribunal that there was a verbal agreement with his employer that he would have 35 days annual leave per annum inclusive of statutory and public holidays.  He was entitled to 35 days’ annual leave in his previous employment.  He had a five day working week.  Any such agreement was disputed by the respondent.  Mr Cassells told the tribunal that it was agreed with the claimant that he would have twenty eight days annual leave per annum, the same as all other employees of the respondent.

3.	The claimant took thirty five days leave between 8 January 2010 and 31 December 2010.  From 1 January 2011 until 12 September 2011 the claimant took nine days annual leave which included Easter Monday and Tuesday.  In addition the claimant took New Years’ Day, May Day and 12 and 13 July 2011.

4.	The claimant took further leave from 29 August 2011 until 9 September 2011 inclusive.  The claimant’s second child was born on 29 August 2011 and he told the tribunal that this period of leave was taken as paternity leave.  The respondent was aware that the claimant’s wife was expecting a baby but believed that the claimant was taking two weeks annual leave at this time.  He was paid full pay.  The claimant confirmed at the Hearing that he had not given his employer the requisite written notice of his intention to take paternity leave.  The claimant told the tribunal that although he realised at the time that he had been paid more than his statutory entitlement to paternity pay, he simply assumed, without any discussion with his employer that it had been decided to pay him a higher amount of paternity pay. 

5.	The claimant came into work on 12 September 2011 and he informed Mr Cassells that he was leaving his employment to set up his own business.  The claimant contended that he gave one week’s notice of termination of his employment and Mr Cassell declined his offer to work his notice.  It was disputed by Mr Cassells that the claimant gave notice but simply said he was leaving to set up his own business on the following Monday.  Having carefully considered the evidence of the witnesses, I am satisfied on a balance of probabilities that the claimant did not give one week’s notice of his intention to resign.

Conclusions 

6.	In the absence of a clear agreement between the parties and written terms and conditions of employment, I am not satisfied that the evidence supports the claimant’s contention that he was entitled to 35 days annual leave.  Therefore the Working Time Regulations apply, which provide that the claimant is entitled to 5.6 weeks holiday or 28 days holiday per annum.  The start of the claimant’s annual leave year, in the absence of the written agreement, is determined by the start date of his employment.  Therefore the claimant’s leave year runs from 8 January until 7 January the following year.  Pro rata the claimant accrued 19 days holiday leave as at the date of effective termination.  

7.	As the claimant did not give the requisite written notice to his employer of his intention to take paternity leave, he is not entitled retrospectively to designate the 10 days leave taken between 29 August and 9 September 2011 as paternity leave.  These days must be treated as annual leave and indeed he was paid accordingly.  The claimant has therefore taken at least 19 days leave from the 8th January 2011 until the date of the termination of his employment and had therefore exhausted his annual leave entitlement by the time of his resignation.

8.	In line with my finding that the claimant did not give one week’s notice of his intention to terminate his employment contract he is not entitled to receive notice pay.  

9.	The claimant’s claims are therefore dismissed in its entirety.  

Chairman:

Date and place of hearing:       13 December 2011, Belfast.
Date decision recorded in register and issued to parties: