THE INDUSTRIAL TRIBUNALS

CASE REF:	  2093/13  

CLAIMANT:	Nichola Thornton

RESPONDENT:	Metro Travel Ltd, t/a Breakaway Travel Ltd

DECISION

The unanimous decision of the tribunal is that the respondent is ordered to pay the claimant the sum of £3,594.81.

Constitution of Tribunal:

Chairman:      	Miss E McCaffrey

Members:       	Mr F Murtagh
                       	Mr E Miller

Appearances:

The claimant appeared in person.

The respondent had submitted a response but was not represented at the hearing.

ISSUES

1.	The issues for the panel to consider were:-

(1)	whether the claimant had been unfairly dismissed by the respondent;

(2)	whether she was entitled to any award in relation to arrears of pay/unlawful deductions from wages; and

(3)	a payment in lieu of holidays accrued but not taken.

THE FACTS

2.	This is one of four claims all brought against the same respondent.  The claimant commenced employment with the respondent on 1 August 2012, working 40 hours per week.  She had agreed with the respondent that she would be paid the minimum wage which was then £6.19 per hour.  While she had initially been employed on the basis that she would work 40 hours per week, her hours were reduced to 24 hours per week from January 2013.  When given her contract of employment she said that the pay details were incorrect and so she refused to sign it and was to be supplied with a new contract which was not given to her.

3.	From 1 January 2013 until 9 September 2013 when her employment ended the claimant worked 24 hours per week and was paid £5.79 per hour, a total of £603.50 per month.  No deductions were made for tax and national insurance from her pay as she was earning below the minimum wage.  The claimant had also agreed with Mr White that she would receive commission of 10% on individual sales, but never received any commission.

4.	The tribunal notes that the name of the respondent given in the claimant’s claim form is “Brian White” and secondly, “Metro Travel, trading as Breakaway Travel”.  The response form lodged by the respondent in relation to one of the claims gives the correct name of the respondent as “Metro Travel Ltd”.  The contracts of employment given to other staff and produced to the tribunal gave the name of the employer as “Metro Travel Ltd trading as Breakaway Travel” and we note the name of the employer on the claimant’s payslips is given as “Breakaway Travel Ltd”.  Accordingly, we amend the name of the respondent to read “Metro Travel Ltd., trading as Breakaway Travel Ltd”.  The response form was lodged only in the case of Amanda Kane (Case Ref No:  2101/13) but seems to refer to all four claimants.  Accordingly, we have treated the response as being the same for all four claims.

5.	On 9 September 2013, Mr Brian White, a director of the respondent company called all staff to a meeting at the respondent’s premises.  He advised them that he was closing the business and that they would all receive one week’s pay in lieu of notice which was paid to them.  The contracts of employment given to all other staff in these claims (and which we think it reasonable to expect would have applied to the claimant as well) certified that she was entitled to one month’s notice once she was employed for over a month up to five years in service.  The contract also specified that staff were entitled to 20 days’ paid leave plus eight bank holidays pro rata for part-time employees.  The claimant was aged 34 at the date of her dismissal.  At the date of the hearing, the respondent company is still active.

6.	The claimant found a new job commencing on 2 January 2014.  From 16 September 2013 until 31 December 2013 she claimed Jobseeker’s Allowance at the rate of £71.40 per week.

RELEVANT LAW

7.	Employees have the right not to be unfairly dismissed as set out in Article 130 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).  In relation to issues of procedural unfairness the appropriate provisions are to be found in Article 130A which provides as follows:-

“Article 130A

(1)	An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if  -

	(a)	one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal;

		(b)	the procedure has not been completed;

	(c)	the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements ...”

8.	The Statutory Disciplinary and Dismissal procedure set out in Schedule 1 of the 2003 Order comprises three stages: a letter from the employer to the employee setting out the alleged misconduct and inviting the employee to a disciplinary meeting at which he is entitled to be accompanied; the disciplinary meeting at which the employee is entitled to be heard and to reply to the allegations against him; a written decision to the employee and the appropriate right to appeal a decision.  Article 17(3) of the Employment (Northern Ireland) Order 2003 makes provision for the uplift of awards in a case to which the statutory procedures apply, but they have not been followed due to the failure of the employer.  The tribunal should increase the award by 10% and may, in situations where it considers it just and equitable to do so, increase it by up to 50%.  

Written Terms and Conditions of Employment

9.	An employee is entitled to receive written terms and conditions of employment by virtue of Articles 33(1) and Article 36(1) of the 1996 Order.  By Article 27 of the 2003 Order, where the tribunal finds that no contract has been provided, it shall award two weeks’ gross pay and they award up to four weeks’ gross pay if it considers it just and equitable to do so.

The Right Not to Suffer Unauthorised Deductions

10.	Under Article 45 and following of the 1996 Order an employee has the right not to suffer unauthorised deductions from his wages unless the deduction is required or authorised to be made by virtue of the statutory provision or provision of the orders contract or the worker has previously signified his agreement in writing or consent to the making of the deduction.

11.	Article 55 of the 1996 Order specifies that a worker may present a complaint to an Industrial Tribunal in relation to deductions from wages and that complaint must be presented before the end of the period of three months beginning with the date of the deduction.  If a complaint is brought in respect of series of deductions, then a reference to the deduction or payment is to the last deduction of payment in respect of which a complaint is made.

Minimum Wage

12.	Under the National Minimum Wage Act 1998 workers are to be paid at least national minimum wage for the current year.  For the years at issue in relation to these claims for the year from October 2011 the rate was £6.08 per hour and from October 2012 the rate was £6.19 per hour.  The rate was increased again in October 2013.

Reasons and Decision

13.	The claimant’s claims relate to unfair dismissal, notice pay and the respondent’s failure to pay her the full rate of the minimum wage.  On discussion with her, we are satisfied that she had taken her accrued holiday entitlement at the date of dismissal.  We are satisfied that the claimant had one year’s service at the date of dismissal and that she was dismissed with one week’s pay in lieu of notice, but without the relevant statutory procedures being complied with.  The respondent did not attend the hearing and we have no evidence before us which persuades us that even if the correct procedures had been followed, the claimant would have been dismissed in any event.

14.	We are also satisfied that the claimant was entitled to receive commission.  However, because of lack of information about the actual commission due, we cannot make any award in that regard.

	(1)	Unfair Dismissal

		In relation to her unfair dismissal claim, we find that the claimant was unfairly dismissed by the respondent in that they completely failed to follow the statutory disciplinary procedures in relation to her claim.

		Accordingly, we make the following award:-

		The claimant was 34 at the date of dismissal and had one year’s complete service.  Accordingly, her basic award is calculated as follows:-

	£6.19  x  24     =     £148.56  x  1	£148.56		
				
	Loss of earnings from 16 September 2013  -  31 December 2013 -			
				
	15 weeks  x  £148.56	£2,228.40		
				
			£2,376.96	
				
	Uplift for failure to carry out the correct statutory disciplinary and dismissal procedures 10%		   £237.69	
				
	Loss of statutory rights		   £300.00	
				
			£2,914.65	

		The claimant received Jobseeker's Allowance from 16 September 2013 until 31 December 2013 (‘the protected period’).  The amount of the award which relates to the protected period is £2,228.40.  The compensatory award exceeds the protected award by £1,366.41.

	(2)	Notice Pay

		The claimant was entitled to four weeks’ pay in lieu of notice but received only one week’s pay.  Her award for loss of earnings includes the three weeks’ notice for which she was not paid.

	(3)	Arrears of Pay

		The claimant is entitled, under the National Minimum Wage Act 1998 to be paid the national minimum wage for any current year.  At the time of her claim this was £6.19 per hour, which she was paid only £5.80 per hour, a difference of 39 pence per hour.  We therefore calculate that she is entitled to be paid the arrears of this amount.

14.	For the period of time when she was working 40 hours per week, we calculate this loss as 22 weeks when she suffered a loss of £15.60 per week.  She also worked a further 36 weeks at 24 hours per week when her loss was £9.36 per week.  We therefore order the respondent to pay to the claimant the sum of £680.16 in respect of arrears of pay.  The total sum which we order the respondent to pay to the claimant is £3,594.81.

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

Chairman:

Date and place of hearing:	26 February 2014, Belfast.	

Date decision recorded in register and issued to parties: