Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 14143/18

 

 

CLAIMANT: Lauren Weir

 

RESPONDENTS: 1. Errol Jenkins

2. Sphinx Glengormley

3. Sphinx Kebab Ltd

 

 

 

 

DECISION

 

The decision of the tribunal is that the proper respondent in these proceedings is a limited liability company, Sphinx Kebabs Limited, and the claimant's claims against the other named respondents are dismissed.

 

The tribunal finds the following of the claimant's specific claims against the respondent to be well-founded:

 

(1) unlawful deduction of wages; and (2) unpaid holiday pay.

 

The tribunal does not uphold the claimant's claim for notice pay and that claim is dismissed by the tribunal, without further Order.

 

The tribunal's determination, under Article 44 of the Employment Rights Northern Ireland) Order 1996, is that the respondent is in breach of Article 40 of that Order by failing to provide to the claimant itemised pay statements.

 

Further, the tribunal determines that the respondent is in breach of the requirement to provide the claimant with a statement of terms and conditions of employment. Under Article 27 of the Employment (Northern Ireland) Order 2003 the tribunal makes an award of four weeks' gross pay in respect of this breach.

 

The tribunal accordingly Orders the respondent, Sphinx Kebabs Limited, to pay to the claimant the following amounts:-

 

(1)           Wages unpaid upon termination of employment = £343.20

(2)   Unpaid holiday pay = £864.10

 

(3)           Award under Article 27 of the Employment (Northern Ireland) Order 2003 = £1,126.40

Total: £2,333.70

 

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone): Mr J V Leonard

 

 

Appearances:

 

The claimant appeared and was represented by her father, Mr Edward Weir.

 

There was no representation at hearing by or on behalf of the respondent company (see reference below).

 

 

THE ISSUES TO BE DETERMINED AND THE EVIDENCE

 

1.             The claimant, by claim dated 30 October 2018, claimed against (1) Sphinx Glengormley and (2) Mr Errol Jenkins in respect of: (1) notice pay; (2) arrears of pay; and (3) holiday pay. In a response to the claimant's claim, dated 30 October 2018, signed by Mr Errol Jenkins, it was asserted that the correct respondent was Sphinx Kebabs Limited which company had been the claimant's employer. It was contended that the claimant had not been dismissed and the claim was resisted. In paragraph 6.2 of the response, it was stated as follows, " Miss Weir was asked to go to another business of mine & refused Miss Weir was paid incorrect rate of pay." The matter was case-managed. In a Case Management Discussion held on 11 January 2019 an Employment Judge ordered that a company, Sphinx Kebab Limited, should be joined as an additional respondent. The Employment Judge made a number of directions which included a direction that the following issues should be determined by the tribunal hearing the case:-

 

1.            Who is the claimant's employer and accordingly the proper respondent to the claim?

2.            Whether the claimant's claim includes a claim of unfair dismissal and whether it should be amended to include such a claim?

 

3.            Whether the claimant was dismissed, constructively or otherwise?

 

4.            Did the respondent fail to provide a statement of main terms and conditions during the time she was employed?

 

5.            Did the respondent fail to provide an itemised pay statement to the claimant?

 

6.            Was the claimant subject to an unlawful deduction of wages?

7.            Is the claimant owed notice pay?

8.            Is the claimant owed arrears of pay?

 

9.            Is the claimant owed holiday pay?

 

10. What was the claimant's contractual rate of pay?

 

11.          Was she paid the correct rate of pay?

 

2.             The Employment Judge made interlocutory directions; mutual exchange of witness statements was directed and other case management directions were made.

 

3.             A further Case Management Discussion was held on 15 March 2019. The Employment Judge made a further Order concerning the provision by the respondent of a witness statement, which was at that time outstanding. Both the claimant and the respondent were represented at these two Case Management Discussions. A witness statement was received from Mr Errol Jenkins on behalf of the respondent, dated 22 March 2019, sent by e-mail to the Office of Tribunals on 25 March 2019.

 

4.             A Notice of Hearing dated 29 January 2019 was dispatched to the claimant and the respondent notifying the parties that the matter was listed for hearing at 10.00 am on 27-28 March 2019. The listing of the matter, as foregoing, was also referred to in the respective Records of Proceedings of both Case Management Discussions. A short time before the listed hearing date Mr Errol Jenkins made an application for the proceedings to be postponed. This application was considered by the President and it was refused. The application was repeated by e-mailed request on the part of Mr Jenkins. In considering this request for a hearing postponement, the tribunal at the outset considered the following pertinent matters:-

 

1.             The respondent stated that his spouse had recently undergone surgery;

 

2.             The tribunal noted the evidence that this was planned surgery, Mr Jenkins having been advised on 30 January 2019 that the surgery was to proceed on 20 March 2019.

 

3.             A Notice of Hearing dated 29 January 2019 had been dispatched to the parties on 30 January 2019 listing the case for hearing on 27-28 March 2019.

 

4.             At the time of dispatch and receipt of this Notice of Hearing Mr Jenkins would have been aware of the date planned for his wife's operation;

 

5.             On 29 January 2019 Mr Jenkins sent to the Office of Tribunal an e-mail applying for a "time extension", but Mr Jenkins did not in doing so refer in any manner to his wife's operation as being a reason for that request;

 

6.             Further correspondence from the Office of Tribunals to the respondent, dated 28 February 2019, was dispatched regarding the provision of documentary evidence to the claimant and this referred to the fact that the Case Management Discussion was to be held on 15 March 2019;

 

7.             The Case Management Discussion took place on 15 March 2019 and both parties were represented at that Case Management Discussion. Paragraph 6 of the Record of Proceedings of that Case Management Discussion clearly states that the "case remains listed" and that the matter would be heard on 27-28 March 2019. It is of note that at this time Mr Jenkins did not raise any issue regarding his wife's planned operation;

 

8.             A copy of the Record of Proceedings of the Case Management Discussion held on 15 March 2019 was sent by letter dated 25 March 2019 to the respondent and this mentioned that the respondent's request for a postponement of the case had been referred to an Employment Judge;

 

9.             On 22 March 2019 Mr Jenkins e-mailed the Office of Tribunals requesting a postponement of the hearing on the grounds of his wife undergoing surgery on Wednesday 20 March and he stated that his wife required 24 hour care for two weeks;

 

10.          A copy of a letter from the relevant hospital was provided by Mr Jenkins, dated 22 March 2019 confirming that an operation had taken place on 20 March 2019. (There were certain difficulties in accessing the foregoing correspondence but these were resolved on 25 March 2019. A copy of a post-operative care letter was also provided. However this made no reference to 24 hour care being required for two weeks);

 

11.          On 25 March 2019 the tribunal received a copy of a witness statement on behalf of the respondent from Mr Jenkins;

 

12.          The request on behalf of the respondent to postpone the proceedings was referred to the President on 25 March 2019; the President refused the request on the grounds stated in that refusal. Most of these grounds of refusal are alluded to in this tribunal's determination of the issue, as mentioned below;

 

13.          The President directed that the letter informing Mr Jenkins' wife of the operation was to be produced and that was produced to the Office of Tribunals by Mr Jenkins by e-mail sent on 25 March 2019 towards the conclusion of that day. In that email Mr Jenkins stated that at the time he was unaware of the severity of the operation;

 

14.          An e-mail was received from Mr Jenkins by the Office of Tribunals on 27 March 2019 at 9.04 am asserting that the operation on Mr Jenkins' wife had been worse than originally thought and that the 7-day period of required care was now extended to 14 days. Mr Jenkins stated that it would be "almost impossible" as he put it for him to attend the hearing scheduled for this morning at 10.00 am.

 

5.             The tribunal delayed the commencement of proceedings until 10:35 am in order to afford to Mr Jenkins and the respondent an opportunity to attend the proceedings or to be represented, in the light of the foregoing information. When the tribunal sat and the matter was called at 10:35 am, Mr Edward Weir was in attendance together with the claimant, but there was no appearance by or on behalf of the respondent. After some discussions with the claimant and the claimant's representative, it was agreed to stand the case over until 1.00 pm and it was indicated that the tribunal would endeavour to get in touch with Mr Jenkins personally in order to ascertain if he intended to attend the hearing at 1.00am today or to arrange for representation of the respondent. The tribunal rose at 11.00 am, to reconvene at 1.00 pm. An endeavour was made forthwith to contact Mr Jenkins by telephone and a message was left for him to the foregoing effect. An e-mail was dispatched also to Mr Jenkins at approximately 11.15 am to this effect. Approximately 30 minutes thereafter Mr Jenkins was in contact and he informed the Office of Tribunals that he would not be attending the hearing. No further information was imparted to clarify matters.

 

6.             In consequence of the foregoing, the tribunal proceeded to sit to hear the matter at 1.10 pm. The tribunal, in determining to proceed with the hearing, took into account all of the matters listed in paragraph 2 above. Matters included, materially, the fact that Mr Jenkins and the respondent had been aware of the case listing dates for some considerable time; that Mr Jenkins had only raised the issue of his wife's operation and of any post-operative care stated to be required in very recent times; that he and the respondent had been afforded by the tribunal additional time to make alternative arrangements and to arrange for attendance or representation of the respondent; and, furthermore, that there was an identified cost (and considerable possible inconvenience) to the claimant and to her representative in attending, which would be wasted and which would be re-incurred if the case were to be postponed; and, in addition, a public interest in the matter proceeding and in the case not being further delayed. The claimant was present and was represented by her father, Mr Edward Weir, but there was no appearance by or on behalf of the respondent. In the light of the foregoing, the tribunal felt that it was appropriate to proceed with the hearing and for the matter not to be further delayed.

 

7.             The tribunal had to determine the issues, as listed, and if any of the claims were to be well-founded, the matter of appropriate remedy.

 

8.             The tribunal noted the content of the claimant's witness statement dated 28 February 2019 and the tribunal also questioned the claimant and permitted the claimant's representative to address some questions to her by means of which she provided some additional evidence. Further to that, the claimant's representative produced to the tribunal a bundle of documents which were also admitted into evidence. Mr Jenkins on behalf of the respondent had earlier produced some documentation which was considered and the tribunal fully considered the claim form and the response thereto.

 

FINDINGS OF FACT

 

9. In consequence of the oral and documentary evidence, the tribunal on the balance of probabilities, made the following findings of fact material to the issues:-

 

1.             The respondent is a limited liability company of which Mr Errol Jenkins is understood to be a director. The respondent conducts business from a number of different premises in the greater Belfast area, one of which is located at 335 Antrim Road, Glengormley BT36 5DZ. The respondent's business is that of preparation and service of food products. The claimant commenced employment with the respondent on 13 June 2016, as a counter assistant. At that time she was a school student, aged 17. The claimant's intention, initially, was to work in this post as a summer job whilst she was on school vacation. At that time the claimant was studying for her A-levels.

 

2.             The claimant applied for this job in consequence of having viewed a notice at the premises inviting applications. The prospect of working at this Glengormley location was attractive, as it was quite close to the claimant's residential address. She completed and personally submitted an application form for the post. The claimant in her evidence was a little uncertain as to whether she had entered her date of birth in that application form. However, subsequent events confirmed to the claimant that the respondent's management, including Mr Jenkins, could have been in no doubt whatsoever concerning her age. She provided in evidence the examples that, on a number of occasions she attended the Glengormley premises wearing a school uniform and she was also conscious of the fact that Mr Jenkins had a daughter of the same age as was she and that this had been raised in casual conversation when Mr Jenkins was present.

 

3.             In the immediate aftermath of the claimant being informed that she was successful in her application, no specific details of the post were discussed with management but, rather, the claimant merely awaited notification of the hours that she was required to work from the Glengormley branch manager, who was called Mr Ahmed Jaber. No documentation was provided to the claimant at the outset. Upon receipt of her first wages, which were always paid to her in cash, having worked a number of shifts it was clear to the claimant that the applicable wage rate for her post was £7.50 per hour. She ascertained this by taking account of the wages paid and the number of hours that she had worked. The claimant was thereafter consistently paid wages at the same rate of £7.50 per hour applicable to all hours that she worked over the initial period of time in this post.

 

4.             The claimant was uncertain as to the precise date when the applicable wage rate was increased but, after a period of time, the claimant commenced being paid at a rate of £8.00 per hour. This appears to have been in some manner due to good reviews being received by the Glengormley branch. The claimant's evidence was that this wage increase was implemented not very long after she had commenced in this employment, but she could not be certain of the precise date of the change. In her witness statement the claimant described it as being a "couple of months" and the claimant's position in her oral evidence was not inconsistent with this. The claimant normally worked shifts of 12 hours from 12.00 midday to 12.00 midnight in the Glengormley premises, but her hours of work did vary from time to time dependent upon the availability of work in these premises and issues concerning other employees and general workforce planning. The claimant very much enjoyed working in the respondent's Glengormley premises and she found it fulfilling. It also provided the claimant with an income whilst she was still a school student and later when she attended Queen's University Belfast.

 

5.             At no time was the claimant ever provided with a written statement of terms and conditions of employment by the respondent, nor with any wages or pay advice records or documents. Any documentation received pertaining to the foregoing was not provided to the claimant by the respondent prior to the date the contract came to an end. Indeed it appears to have been provided in response either to a grievance raised by the claimant post-termination or in connection with these proceedings.

 

6.             The precise pattern of working was to a large extent dictated by the claimant's availability to work due to studying for her A-levels and then subsequently attending University. She endeavoured to work as much as possible during vacation periods and also regularly whilst a student.

 

7.             Matters appear to have been fairly uneventful until June 2018. Then the claimant noted that her wages appeared to have been underpaid by £30.00. She contacted Mr Jenkins by text message concerning this. In response, Mr Jenkins sent a text to the claimant containing a copy of a document which purported to show the respondent's pay rates, which differed according to age. For example, the respective pay rates for age 16-17 were £4.30; age 18-20 was £6.50; age 21-24 was £7.50; and age 25 + was £8.00. Mr Jenkins did not provide any accompanying explanation, just a copy of that document.

 

8.             The claimant discussed the matter with Mr Jenkins directly the following day when Mr Jenkins attended the Glengormley premises. She queried with him why there had been a wages cut. She also raised the matter that she had not been paid any holiday pay since the commencement of the employment. In response, Mr Jenkins stated to the claimant that he was unaware of her age and that he had been overpaying her. The claimant stated to Mr Jenkins that she felt that this was very unfair and she pointed out that she had been working in the Glengormley premises for the respondent and had been on the pay rate of £8.00 per hour for nearly 2 years. The claimant was upset at that point and Mr Jenkins left the premises without saying anything further.

 

9.             The claimant continued to work at the Glengormley premises for the stated reason that it was her only source of income and that she felt she had no choice but to keep working there. A short time afterwards the claimant made arrangements with her family for a number of holidays abroad in the course of the summer of 2018. She informed the Glengormley manager, Mr Jaber, and also wrote her holiday dates on the work rota, which was the normal practice. Notwithstanding requesting this directly from Mr Jenkins, the claimant received no holiday pay. Mr Jenkins appears to have effectively "palmed off" the claimant in that regard by referring her to the respondent's accountant, from whom the claimant did not receive any response for information despite endeavouring to seek an explanation.

 

10.          At the end of her summer vacations abroad, at the start of September 2018 the claimant attended the Glengormley premises with the intention of picking up her wages and in order to check her shifts on the work rota. She noted that she was not on the rota. The claimant then, on Monday 3 September 2018, received a telephone call from a person called Osama who was the manager of the respondent's Botanic, Belfast, premises. Osama informed the claimant that she was on the rota for these premises. That day the claimant also received a text message on behalf of the respondent from a lady called Emma Bamber stating that she needed to move the claimant to Sphinx, Botanic, starting the following week. She mentioned that two of the respondent's employees were pregnant. The claimant also received a telephone call and a text message from Emma Bamber stating that there were no hours for her in Sphinx, Glengormley.

 

11. The claimant did not report for work, as requested, to Sphinx, Botanic, but instead she immediately sought advice from the Labour Relations Agency. As a consequence, the claimant wrote to Mr Jenkins by letter dated 4 September 2018, indicating that she had been employed since June 2016 in Sphinx, Glengormley and, notwithstanding an entitlement, that she had not been issued with a statement of terms and conditions of employment, nor with any payslips. She stated that her typical average hours per week were 28 and that this was, if not stated expressly, implied on account of custom and practice after one year. She pointed out that her hourly rate when she started in June 2016 was £7.50, which rose to £8.00 per hour within the first year. She noted that in June 2018, without notice, her wage rate was cut to £6.50 per hour. She maintained that custom and practice implied a rate of £8.00 per hour. She further mentioned that as an employee of the respondent she was legally entitled to 5.6 weeks' paid holidays per year. She had repeatedly asked for her entitlement and had yet again received no response. She queried why that was the case. She also queried why there were no hours available for her to work in the Glengormley premises and she raised the issue of there being no mobility clause in any contract terms afforded. In response to this letter Mr Jenkins wrote to her by letter dated 5 September 2018, providing a copy of Terms & Conditions and indicating that he had asked the accountant to forward details of hours of work and payslips. Mr Jenkins maintained that there had been an overpayment in the hourly rate, which had been discussed with the claimant. Mr Jenkins referred to the respondent's hourly pay rates (as mentioned in the document which had been sent by text message) and he stated that holiday pay would be forwarded to the claimant in due course. Mr Jenkins also mentioned that Ms Bamber had asked the claimant to work in another branch, Botanic, as hours were available at that shop and he alluded to the Terms & Conditions in reference to "place of work" and stated that work had been offered, which the claimant had refused. There appears to have been no further communication between Mr Jenkins or the respondent company and the claimant prior to the issue of proceedings in the matter.

 

THE APPLICABLE LAW

 

 

THE TRIBUNAL'S DECISION

 

11. The applicable contract terms in this matter, in the absence of any evidence of a written contract during the currency of this employment, are those which upon the evidence were orally agreed, or agreed by evidence of conduct, between the claimant and the respondent or the respondent's representative at the Glengormley premises. The tribunal accepts that an initial wage rate of £7.50 per hour was either expressly agreed or, by implication and by conduct was agreed upon payment by the respondent and upon receipt by the claimant of the applicable wages. The evidence of this agreement is that the claimant, without question or query, received a wage initially at the figure of £7.50 and a few months afterwards at the figure of £8.00 per hour worked and this level of wage was afforded by the respondent to the claimant. The tribunal accepts, upon the balance of the evidence, that there is no question but that the respondent was well aware of the claimant's age. Accordingly the tribunal does not accept the proposition that the respondent only ascertained claimant's true age over two years later and only then was properly in a position to apply a stated wage rate for those aged 18-20 years, that being a rate of £6.50 per hour. The position of Mr Jenkins in that regard, as stated on behalf of the respondent, is not credible. It would amount to speculation on the tribunal's part to ascribe a motive to this change. However, the tribunal cannot accept that this was on account of a sudden and unanticipated appreciation of the claimant's true age, followed by a consequent endeavour to apply the respondent's stated wage rate to the claimant. Accordingly, the contractual wage rate at the time the contract came to an end was £8.00 per hour, based upon the persuasive evidence in this regard.

 

12. The tribunal accepts, without question, the claimant's evidence that she had never been in receipt of holiday pay, from the outset of the employment contract. The tribunal notes that in none of the documentation provided does Mr Jenkins on behalf of the respondent seek to challenge the proposition that no holiday pay had ever been paid. Mr Jenkins merely states that he had asked his accountant to look at this matter and that holiday pay would be paid. When the tribunal explored this issue with the claimant's representative, the representative candidly conceded a difficulty, in the absence of a complete record of all hours worked by the claimant in this type of service work. These were not regular hours. The representative conceded that it was next to impossible to compute precisely the sums that might be owed to the claimant by the respondent for holiday pay, from the outset. The representative's position (and in doing so making this rather generous but nonetheless realistic concession) was that the claimant's claim for holiday pay in these proceedings was confined only to any holiday pay that would have accrued since start of 2018, that being the year in which the employment with the respondent had ceased. The representative had helpfully set out, accompanied by some photographic evidence of the Glengormley premises work rotas by way of corroboration, evidence which he contended could be fairly computed as representing average hours worked, calculated at 35.2 hours per week. Examining the evidence, the tribunal accepts this proposition and finds that the applicable average hours amount to 35.2, per week. The representative also submitted that this figure ought to be applied to the statutory holiday entitlement of 5.6 weeks per year, which was then required to be apportioned to correlate to the 8 complete months of the year 2018 during which the claimant had worked for the respondent. The holiday pay calculation was therefore properly to be as follows, so the representative submitted:-

 

5.6 (weeks) x 35.2 (hours) x 8 (£/hour) = £1,576.96 per annum

 

Claimant worked 8 months of year 2018 - so multiplier is 8/12

 

£1,576.96 x 8/12 = £1,051.30 pro-rata holiday pay due.

The tribunal accepts the evidence and the claimant's representative's submission in that respect based, on balance, upon the weight of the available evidence and finds that the claimant's claim in this respect is well-founded and that the (gross) sum of £1,051.30 holiday pay is due and unpaid from the respondent to the claimant. However, the respondent did pay to the claimant (after deductions) the sum of £187.20 in regard to holiday pay and that figure has properly to be taken off the foregoing figure, leaving the net sum for holiday pay of £864.10. The tribunal consequently Orders that the sum of £864.10 shall be paid by the respondent to the claimant.

 

13. In regard to the termination of the employment and any wages outstanding, the tribunal notes the evidence regarding the manner in which the contract came to an end (or may be deemed to have ended) and the specific claims made by the claimant in these proceedings. The tribunal cannot disregard the fact that the claimant, expressly, in paragraph 7.1 of claim form has identified her claims as being notice pay, arrears of pay and holiday pay. She has failed to complete a portion of paragraph 7.1 identifying that she is claiming unfair dismissal (including constructive dismissal) when the opportunity was open to her to do so at the time of completion of the claim form. It has also been mentioned, expressly, in paragraph 8 of the claim form, that the claimant had at the relevant time taken advice from the Labour Relations Agency. The claimant has accordingly not, in any manner, expressly made out a claim in her claim form for unfair dismissal. The tribunal examined the matter of whether or not such a claim might be implied into the claim form itself, or from the conduct by the claimant of the case since submission of her claim. Again, the tribunal notes that this does not appear to have been expressly raised by the claimant in either of the Case Management Discussions. The tribunal notes that it is identified as being an issue by the Employment Judge in the Record of Proceedings of the Case Management Discussion which took place on 11 January 2019. However, there is nothing in the Record of Proceedings which can be identified as constituting any manner of an application on the part of the claimant or by her representative to include such a claim, or by way of clarification of the proceedings as including any claim for unfair dismissal, nor indeed by way of any manner of an application for amendment of the proceedings to include such an unfair dismissal claim. There is brief mention made of this, for the first time it has to be said, in the bundle of documents submitted to the tribunal at the commencement of the hearing. However, at no time throughout the course of the oral hearing was this matter raised by the claimant's representative, including being mentioned expressly in representations put forward towards the conclusion of the case. It is not for the tribunal to supplement any claimant's claim nor to add or expand any claims in the absence of an express application in that regard by any party. Any party to proceedings is quite free to pursue any relevant claim that is within the jurisdiction of the tribunal, providing there are adequate grounds for doing so and that is expressly stated or, perhaps, that the implication is clear and unambiguous. Taking everything together, this is not such a case. Accordingly, the tribunal's determination upon this point is that the proceedings do not and cannot be construed as containing such a claim of unfair dismissal. Indeed, such a claim was not alluded to in any part of the oral hearing by the claimant or the claimant's representative and that, perhaps, is the most conclusive aspect of the matter. Accordingly, the issues numbered two and three of the issues identified by the Employment Judge in the Case Management Discussions that took place on 11 January 2019 may be answered, in short, to the effect that the claim does not include a claim of unfair dismissal, and accordingly whether the claimant was unfairly dismissed, constructively or otherwise, is not for the tribunal to determine in these proceedings.

 

14. Having addressed that issue, the tribunal may now deal with outstanding issues, including unlawful deduction of wages and notice pay, which are expressly claimed in the claimant's claim form in these proceedings. In regard to the wages deduction issue, the claimant's final instalment of wages is represented in this case on behalf of the respondent in reference to the last of a number of documents purporting to be "payslips" and a copy of a final wages cheque payment. These payslips, the claimant asserts (and the tribunal accepts this assertion without difficulty) were never seen by the claimant until after the contract came to an end. On the basis of the claimant's evidence, which is accepted by the tribunal without difficulty, these are not in any way representative of the hours actually worked by the claimant, which are stated in the payslips to be the same number of hours worked each week over a significant period of time. The claimant's clear evidence is that the hours actually worked by the claimant were not regular and not constant.

 

15. What is clear from the wages records provided by the respondent, insofar as they have any credence, is that for the most part a standard 28 hours per week is stated which seems to be related to a pay rate of £7.80 per hour. The claimant maintains that the contractual rate was £8.00 per hour. What appears to have occurred, as far as the tribunal can adjudge this, is that the respondent has purported to "average out" matters over a number of weeks by using a notional figure of 28 hours per week as a standard figure. However, on the claimant's evidence there has been no endeavour accurately to represent the hours actually worked by the claimant and any wages earned as a consequence, at the proper contractual rate. Having examined both the statement of purported calculation of holiday pay produced on behalf of the respondent and also the wages records, such as they are, provided on behalf of the respondent, it is next to impossible to make sense of these as being in any way aligned with the claimant's evidence of hours actually worked including a reference to certain copy documents of the hours worked by the claimant as recorded upon the work rotas. It appears tolerably clear that this exercise on behalf of the respondent was conducted "after the event" to put some structure on things, but without connecting this to the reality of what time the claimant had actually worked.

 

16. There is a document within the papers from the respondent's accountant prepared evidently to compute holiday pay due. When one examines that document the figures appear to suggest, for most weeks, an identified standard number of 28 hours per week. This is represented by a wage for these 28 hours each week stated as £218.40. That would equate to a rate of £7.80 per hour, whereas the claimant's evidence was that she actually received £8.00 per hour. In this document in a corresponding column the "correct" wage is then identified as being £182.00 for these stated 28 hour weeks. This latter would equate to £6.50 per hour. This, the respondent asserts, is the correct hourly rate. The document further purports to record a total of 81.60 hours at £6.50 per hour, equalling £530.40. It is that figure which the respondent states is due to the claimant for holiday pay (but subject to deductions). However, the document then purports to calculate an "overpayment" amounting to £343.20, according to these figures, leaving a net sum due of £187.20 (£530.40 less £343.20). By cheque dated 12 September 2018 issued by the respondent, the claimant was paid that sum of £187.20. This sum therefore purports to be the balance due for holiday pay, as calculated, less the claimed overpayment.

 

17. Interestingly, the copy wages slips provided after the termination of contract state the basic pay to be in respect of "28 hours" in each case at £7.80 per hour, being £218.40 gross per week. However, immediately below that in each wage slip is a statement: "Gross up Basic Pay", with an ascribed figure of £7.69, totalling £226.09 gross each week. However, then "National Insurance" of £7.69 is deducted in each case, bringing the net pay down again to £218.40. This is the same for all of the weeks where the respondent has provided wages records ranging from 9 April 2018 up to 5 June 2018. In the following and final week, that in reference to pay date 12 June 2018, the pay of £93.60 appears to be in respect of 12 hours only, at £7.80 per hour, with no mention of any National Insurance deduction. Nothing further has been provided on behalf of the respondent concerning wages slips. In respect of the relevant statutory provisions, Article 40 of the 1996 Order requires any employer to provide written itemised pay statements to the employee containing the information specified in Article 40 (2). That was not done. The tribunal's determination under Article 44 of the 1996 Order is that the respondent is in breach of Article 40 in that regard.

 

18. In the absence of any representation by or on behalf of the respondent at the tribunal hearing, a considerable part of this evidence appears to be rather unsatisfactory. This is so especially in view of the claimant's assertion, which the tribunal accepts as being accurate, that she did not routinely work an exact number of 28 hours per week on every week. For many weeks the claimant worked considerably in excess of that stated number of hours. The proof of that is derived from the copies of the Glengormley premises work rota records provided in evidence to the tribunal by the claimant. These records demonstrate that the claimant on many occasions worked at least 33 hours per week and indeed, on at least one occasion, 42 hours. It is therefore fair and reasonable, in the tribunal's view, for the claimant's representative to have averaged out the working hours at a figure of 35.2 hours per week from the available rota records, in the absence of anything more comprehensive, which either has not been provided or is incapable of being provided to the tribunal, notwithstanding the clear directions made by the Employment Judge at the Case Management Discussions.

 

19. Notwithstanding all of this difficulty and imperfection in the available evidence, the claimant's submitted claim in respect of unpaid wages is confined just to the claim for unlawful deduction in the sum of £343.20, as is referred to above. The tribunal, upon the evidence, surmises that more wages might well be owed but that would be next to impossible to precisely quantify and the claim, as expressly stated by the claimant, has not sought to go beyond this specific amount claimed. The tribunal has determined from the evidence that the applicable contractual wage rate was £8.00 per hour. There is however a small disparity between that figure of £8.00 and the figure of £7.80 as an hourly rate present in the respondent's figures (as mentioned £7.80 appears in the respondent's holiday pay computation and in what purport to be the wages records).

 

20. This is a matter for the claimant, but the claimant's case seems to accept the calculation figure of £7.80 per hour as a base figure for the claimant's claim for unlawful deduction. The claimant's claim is for a figure of £343.20. However, that can only be connected to the respondent's own figure for the stated overpayments (that being based upon 28 hours x £7.80 for most of the relevant weeks). Again, it is not for the tribunal to make the claimant's case on her behalf. If the claimant's case is presented on the basis of the unlawful deduction which amounts to £343.20, the tribunal may proceed upon that asserted basis. However, what is entirely certain is that the respondent's contention that there had been an overpayment of wages is entirely incorrect. The tribunal's determination of this part of the claimant's claim, accordingly, is that there has been an unlawful deduction of the sum of £343.20, as claimed by the claimant. The tribunal finds the claimant's claim well-founded in that regard. Consequently, the tribunal Orders the respondent to pay to the claimant the sum of £343.20 in respect of an unlawful deduction of wages.

 

21. Next, the tribunal shall address the claimant's claim for notice pay. For pay to be due in lieu of notice, this has to be grounded upon the tribunal's conclusion that, in breach of contract or statute, the employment contract has been terminated without due notice being given. The tribunal has considerable difficulty with this as a proposition in this case, considering the manner in which employment came to an end and in the absence of any claim for unfair dismissal (or constructive dismissal). It appears to be the case that the claimant was expressly offered work at another of the respondent's branches where they appear to have been short staffed. The claimant declined a purported work instruction to attend the respondent's Botanic premises. There appears to have been available work for her at that location. One must presume that if she had attended she would have worked at that location and the contract would not have ended at that point. The claimant has explained to the tribunal her reasons for declining this work instruction. These reasons relate to the location of the Botanic premises, which was quite distant from her home and a consideration of the practicalities concerning transport, especially late in the evening. The claimant has also referred to the absence of any express contractual terms, including any express mobility clause contained within any written contract. She was indeed aware of the existence of other trading branches of the respondent at other locations in the greater Belfast area, however she had little knowledge about these.

 

22. The claimant's name was left off the rota in the Glengormley premises. She made a number of enquiries in respect of this. It was clear that the respondent wished to transfer her to the Botanic premises; whether on a temporary basis or not is unclear. The claimant speculated as to the respondent's motivation for this, but the tribunal declines to record her opinion as it is entirely speculative. The pertinent question therefore is: did the respondent terminate the employment contract, without notice, either expressly or by implication? There was certainly no express termination of contract, for the respondent clearly wished the claimant to continue working, albeit at a different location - Botanic. Was there, alternatively, an implied termination? To succeed in this latter proposition the claimant would have to satisfy the tribunal concerning something akin to what might be required to be proven to sustain a claim of constructive dismissal. This would be that the respondent so fundamentally breached the contract of employment, including any implied term of trust and confidence, that the claimant left in response to that fundamental breach or fundamental repudiation of contract on the respondent's part. Having examined the facts, the tribunal's considered conclusion is that the claimant has not attained the threshold required. Accordingly the tribunal does not conclude that the respondent fundamentally breached the contract and thus brought it to an end, without notice, as a consequence entitling the claimant to claim pay in lieu of notice. For that reason, the claimant's claim in regard to pay in lieu of notice is not well-founded and this is dismissed by the tribunal.

 

23. This leaves outstanding one further, but significant, issue. The tribunal's finding is that the claimant was not provided with a statement of terms and conditions of employment. Articles 33 (1) and 36 (1) of the 1996 order require an employer to provide an initial written statement of particulars of employment covering specified matters and a written statement of any subsequent changes to any particulars. Article 27 of the Employment (Northern Ireland) Order 2003 (the 2003 Order) provides that the tribunal shall make a minimum award either two weeks' gross pay or if in all the circumstances it considers it just and equitable to do so, four weeks' gross pay in respect of this failure. This does not require a specific claim for an additional award. This, however, does not apply if there are exceptional circumstances which would make an award or increase unjust or inequitable. Article 27 of the 2003 Order applies to proceedings before a tribunal relating to the claims set forth in Schedule 4 to the 2003 Order and this entitlement applies only where the tribunal finds in favour of any claimant in respect of proceedings concerning specific statutory entitlements such as are set forth in Schedule 4. In this case the relevant claims are the claims on the claimant's part that have been successfully made out in regard to wages deductions under Article 55 of the 1996 Order, as upheld by the tribunal and also unpaid holiday pay .

 

24. In this case it is clear that the respondent had a blatant disregard to the statutory provisions, both in respect of holiday pay and also in respect of the provision of wages information and, furthermore, the provision of a statement of employment particulars to this employee. Having fully considered all relevant matters, the tribunal's determination is that, firstly, there are no exceptional circumstances which would make an award or increase unjust or inequitable. Furthermore, in the light of the respondent's clear and continuing disregard of the statutory provisions (where indeed there is now so much readily-obtainable information and assistance available to any employer, including many online resources at no cost) this would appear to be an appropriate case to make an award in excess of the minimum award and, indeed, an appropriate case in which to award four weeks' pay. Accordingly, the tribunal makes such an award in this case. It is worthy of mention that, notwithstanding the apparent de facto acceptance by the claimant of the wage rate of £7.80 per hour for the purposes of the holiday pay (deductions) claim, in the light otherwise of the clear evidence that the applicable contract rate was indeed £8.00 per hour, that latter figure of £8.00 has been used by the tribunal in this calculation of gross pay, which is as follows;

 

Assessed weekly pay (gross) 35.2 hours x £8.00 per hour = £ 281.60 per week

 

£281.60 x 4 weeks = £1,126.40, awarded under Article 27 of the 2003 Order.

 

 

25. The tribunal therefore finds the foregoing part of the claimant's claims to be well-founded and Orders the respondent, Sphinx Kebabs Limited, to pay to the claimant the following amounts:-

 

(1)           Wages unpaid upon termination of employment = £343.20.

 

(2) Unpaid holiday pay = £864.10

(3) Award under Article 27 of the Employment (Northern Ireland) Order 2003 of four weeks' gross pay = £1,126.40

Total: £2,333.70

 

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

 

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 27 March 2019, Belfast

 

 

Date decision recorded in register and issued to parties: