THE INDUSTRIAL TRIBUNALS
CASE REF: 1213/03
APPLICANT: Darren Thompson
RESPONDENT: Taranto Limited
DECISION
The unanimous decision of the tribunal is that the applicant was unfairly dismissed by the respondent and is entitled to the compensation set out at the end of this decision.
Appearances:
The applicant was represented by Mr Ronan Lavery, Barrister-at-Law instructed by Messrs Byrne & Herbert Solicitors.
The respondent was represented by Mr Henry Webb of Croner Consulting.
The decision of the tribunal is given in extended form so as to sufficiently explain the grounds for the decision.
- The first question which had to be decided by the tribunal was whether the applicant, a stair maker, was an employee of the respondent or an independent contractor.
- The tribunal in holding that the applicant was an employee took into account the arguments advanced by the respondent to set up a case that the applicant was an independent contractor namely that the applicant worked on piece rates and in his own hours. The applicant did not have to clock in or clock out but merely had to finish work in time for the respondents to honour their contracts. Furthermore the applicant was able to bring in a helper from time to time if the applicant required assistance in any part of the work.
- Also in support of the respondents contention was the fact that that applicant had been recruited into the business by the previous stair maker who had been an independent contractor. The applicant provided his own tools and kit and issued a statement to the respondent when a certain piece of work was completed in order to claim payment.
- To support the applicant's contention that he was an employee was the fact that he had a full Contract of Employment setting out all the matters that would be included in an employee's contract. The tribunal rejected the respondent's argument that this form had been used, as it was the only form of contract that the Company had but alterations had been made to parts of the form in order to write in the fact that piece work was to be paid for and not an hourly wage.
- The applicant had also been paid after deduction of tax, holiday pay and employees National Insurance contribution.
- Finally, the applicant had always made it clear to the respondent that he wished to be an employee and not a self-employed person and he stated that he would not have taken the job if he had been told he was going to be self-employed.
- Having heard these arguments the tribunal are of the unanimous view that the applicant was an employee of the respondent. The tribunal had been referred to various decided cases which assisted it in reaching its decision. One of these the case of MacFarlane –v- Glasgow City Council 2001 IRLR 7 stated that a Gymnastic Instructor could arrange a replacement from a register of similar instructors which was kept by the Council. In the present case the applicant did not substitute a person to do the work that he was contracted to do but did on certain occasions, when there was heavy lifting to be done, arranged to bring somebody in with him to carry out that task. This other man worked along with the applicant on such occasions and this was known to the respondents.
- The tribunal looked at the various tests set out in Harvey. These were the control test, where an employee is a person who is subject a greater degree of control than an independent contractor. The tribunal however preferred the organisational test which was prepounded by Lord Denning in the case of Stevenson Jordan & Harrison Limited –v- McDonald Evans 1952 IRLR 101 where he stated "Under the contract of service a man is employed as part of the business whereas under a contract for services his work, although done for the business is not integrated into it but only accessory to it".
- In the present case before this tribunal the applicant was working every day that he was required in the business making the stairs to the specifications of the respondents and to their time-scale. Furthermore the applicant had a complete written contract of employment which even set out the piece rates that he was to be paid and the tribunal were impressed with his evidence that when he was taken on by the respondent he made it quite clear to the respondent that although he would work piece rates he wished to be considered to be an employee and to have his tax and national insurance and holiday money deducted as he did not feel capable of organising this himself. For these reasons the tribunal hold that the applicant is an employee.
- Having made this decision and announced it to the hearing the tribunal heard the evidence of the parties as to the manner of the dismissal of the applicant. The tribunal were informed that in or about 2003 the respondent company decided to manufacture stairs using a different technique than the one theretofore used. The applicant had been off work for a few weeks due to a downturn in business but when he returned he was told that new moulds were to be used in the manufacture of stairs and that his old moulds were in fact being destroyed. On taking the matter up with the Company director involved in production the applicant was told that his services were still required and he continued to work for a week. Thereafter he received no further orders for stairs using his old technique and was not instructed on any new techniques. When he raised this again with the Director he was told that his wage would have to be renegotiated due to the new manufacturing methods. The applicant heard nothing further from the respondent until he received his P45 on 4 April 2003.
- The tribunal find that the applicant on his return after the short lay-off was not reintegrated into the workforce in a way that would encourage him to feel that he was still part of the team. The applicant was given no training on the new system but merely told that he would be required in the future. The applicant was however told that a new wage would have to be negotiated with him. The tribunal hold that he was dismissed when he received his P45 on 4 April 2003.
- The tribunal heard evidence that the applicant went to the Jobseekers to try and obtain new work and indeed after a short lay-off was able to obtain a handyman post at Seapatrick Care Home on 23 July 2003. The applicant worked as a maintenance man for that company for twelve months. After that the applicant was able to get a job in another company at a similar wage to that which he was earning at the respondents. The wage that he earned at the Care Home was £400.00 per month a calculation of the basic and compensatory award is set out below.
- The basic award is based on the applicant's date of birth being 20 July 1971 and his having worked for the respondent for one complete year. Namely 4 March 2002 to 28 March 2003.
Basic Award
August gross pay for one week - £344.00
One week's pay – Maximum sum allowed £ 250.00
Compensatory Award
August net pay from respondent - £260.00
Loss from 8 April – 23 July 2003 - £260.00 x 15 weeks = £3,900.00
(applicant could only work for 6/10 of a week due to child care responsibilities)
Therefore £3,900.00 x 6/10 = £2,340.00
Loss from 23 July 2003 - 22 July 2004
Wage earned £100.00 per week (equivalent to full time of £166.67 per week)
£260.00 - £166.67 = £93.33 per week loss £4,853.16
£7,443.16
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Recoupment
Your attention is drawn to the notice below which forms part of the decision of the tribunal.
Interest
This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 18 March 2005, Belfast.
Date decision recorded in register and issued to parties:
Case Ref No: 1213/03
APPLICANT: Darren Thompson
RESPONDENT: Taranto Limited
ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER'S ALLOWANCE/INCOME SUPPORT
- The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996.
| |
£ |
| (a) Monetary award |
7,443.16 |
| (b) Prescribed element |
2,340.00 |
| (c) Period to which (b) relates: |
8 April 2003 -
23 July 2003 |
| (d) Excess of (a) over (b) |
4,853.16 |
The applicant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker's Allowance or Income Support received by the applicant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker's Allowance or Income Support paid to the applicant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the applicant.
- The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
- The applicant will receive a copy of the recoupment notice and should inform the Department of Social Development in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the applicant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the applicant and regardless of any dispute between the applicant and the Department.
