Gallagher v Great City Attractions Global ... [2011] NIIT 01112

THE INDUSTRIAL TRIBUNALS

CASE REF: 1112/11

CLAIMANT: Patrick Gallagher

RESPONDENT: Great City Attractions Global Ltd

DECISION

The unanimous decision of the tribunal is that the claimant’s claim is unsuccessful, and accordingly it is dismissed.

Constitution of Tribunal:

Chairman: Mr P Buggy

Members: Ms F Graham

Mr B Heaney

Appearances:

The claimant was self-represented.

The respondent was not represented.

REASONS

1. The claimant was self-represented. However, because of severe dyslexia, the claimant, for practical purposes, cannot read. At this hearing, he was accompanied and supported by his brother, Kieran Gallagher. After the main hearing in this case had concluded, certain documents were received from the respondent by the Office of the industrial tribunals. However, because those documents were not made available to the tribunal prior to the conclusion of the hearing, those documents were not taken into account by this tribunal.

2. In these proceedings, the claimant complains of unfair dismissal. In the context of these proceedings, the legislation which is relevant is the Employment Rights (Northern Ireland) Order 1996 (“the Order”).

3. The unfair dismissal provisions of the Order are cast in very similar terms to equivalent provisions which are to be found in the Employment Rights Act 1996 (“the Act”).

4. The Order is Northern Ireland legislation. The Act is part of the law of Great Britain.

5. In his claim form, the claimant named the respondent as “Great City Attractions”. However, a response has been entered on behalf of “Great City Attractions Global Ltd”. It is clear to us that the claimant’s claim is really intended to be made against Great City Attractions Global Ltd and it is clear to us that the latter company accepts that it is the real respondent to the claim, and we have altered the title of the proceedings accordingly.

6. In these proceedings, we refer to Great City Attractions Global Ltd as “Attractions”.

7. In recent years, a “Big Wheel” has become a familiar feature of urban life in many cities throughout the United Kingdom, and in Dublin. When the Big Wheel was in Belfast, the claimant was offered and accepted employment with the company which was then responsible for running the Belfast Big Wheel, and for running the Big Wheel in other cities. That company was WTA Global Holdings Ltd. In this Decision we refer to that company as “Holdings”.

8. The claimant’s claim form could be construed as including a claim for failure to provide reasons for dismissal, as well as including a claim of unfair dismissal. However, during the course of the hearing, the claimant told us that he wished only to pursue the claim of unfair dismissal.

9. The claimant was employed by Holdings as a maintenance operative. He worked for Holdings, in that capacity, on Big Wheels in Northern Ireland, Great Britain and the Republic of Ireland. According to the respondent, the claimant was dismissed because of redundancy.

10. At paragraph 6.1 of the claim form, Attractions, in effect, accepts that, on 24 December 2010, the entity to which the claimant was assigned (in the senses in which those terms are used in the context of transfer of undertakings law) was transferred to Attractions, which thereby became the transferee of the relevant entity and, as such, became responsible, as the employer (in place of Holdings) for all the liabilities, if any, which had been incurred by Holdings, prior to the relevant transfer, in relation to the claimant’s contract of employment.

11. Holdings became the subject of an Administration Order during the period after the claimant had been given notice of dismissal, but before that dismissal took effect.

12. In these proceedings, the claimant’s unfair dismissal claim is mainly based on the factual contention that the Employer (Holdings prior to the relevant transfer and Attractions thereafter) had suitable alternative employment available prior to the date on which the claimant’s dismissal took effect, and that he was not offered that alternative employment and/or that he was not offered a fair opportunity to compete in respect of that alternative employment.

13. As we pointed out to the claimant, during the course of this hearing, the issues in this case could be summarised as follows:

(1) Does the tribunal have jurisdiction to entertain this claim, in view of the relevant statutory time-limits?

(2) Do the unfair dismissal provisions of the Order apply in the circumstances of this case?

(3) If (and only if) questions (1) and (2) are both answered in the affirmative, the third issue would be whether the claimant has been unfairly dismissed.

The time-limit issue

14. The claimant was dismissed with effect from 10 January 2010. His claim form was received in the Office of the industrial tribunals, here in Belfast, on 6 May 2011. His last internal appeal against redundancy had concluded by 18 January 2011, when the Employer issued a letter to the claimant which told him that the original decision to dismiss him was being upheld.

15. Article 145 of the Order contains provisions in relation to time-limits. Those provisions are, in essence, identical to the provisions of Article 111 of the Act.

16. Article 145(2) provides as follows:

“(2) Subject to [a provision which is irrelevant in the present context] an industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal –

(a) before the end of the period of three months beginning with the effective date of termination, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was reasonably practicable for the complaint to be presented before the end of that period of three months”.

17. These proceedings were not presented within the period of three months beginning with the effective date of termination of the relevant contract of employment. However, we are satisfied that Article 145(2) does not prevent this tribunal from considering these proceedings, because we are satisfied that it was not reasonably practicable for the proceedings to be presented before the end of the relevant period of three months and we are satisfied that the proceedings were presented within a further period which this tribunal considers to be reasonable.

18. Our conclusions in relation to practicability and in relation to the reasonableness of the further period are conclusions which are based upon our factual conclusions in respect of the effects of the claimant’s dyslexia.

19. In light of the claimant’s sworn testimony, which we consider to be accurate in relation to all matters in respect of the time-limits, and on the basis of the information supplied by Kieran Gallagher (who, as noted above, was present at this hearing), we are entirely satisfied that the claimant, for practical purposes is unable to read, on account of dyslexia. We are satisfied that the effect of this is that the claimant finds it difficult to deal with matters such as claims, and that the relevant difficulties diminish his ability to obtain, absorb and make sense of, information in relation to legal matters.

The scope of the unfair dismissal provisions of the Order

20. The next issue is whether or not the claimant is entitled to complain under the Order in respect of unfair dismissal.

21. On this second issue, we drew the attention of the claimant and his brother to the summary of the legal position which was set out at paragraph 2.33 of the August 2010 edition of the IDS “Unfair Dismissal Employment Law Handbook”, and provided them with a copy of paragraph 2.33.

22. Northern Ireland’s statutory provisions in relation to unfair dismissal are to be found in Part XI of the Order. Great Britain’s provisions in respect of unfair dismissal are to be found in Part X of the Act.

23. The provisions of Part XI of the Order, are in substance, practically identical to the provisions of Part X of the Act.

24. The geographical scope of the rights which are conferred by the Great Britain unfair dismissal legislation (Part X of the Act) was considered by the House of Lords in Lawson v Serco Ltd [2006] ICR 250. The basic principles which were laid down in Serco were explained and amplified in the judgment of the United Kingdom Supreme Court in Duncombe v Secretary of State for Children, Schools and Families (No. 2) [2011] UKSC 36.

25. The scope of the unfair dismissal provisions of the Act was the issue in Serco and Duncombe. However, the principles which have emerged from those two cases apply with equal force when considering whether or not the provisions of Part XI of the Order are available to a claimant.

26. In the context of the present case, the implications of the Serco principles (as explained and amplified in Duncombe) can be summarised as follows. Article 126 of the Order, which grants employees the right not to be unfairly dismissed, contains no geographical limitation. However, it has always been clear that Article 126 nonetheless could not apply to all employment anywhere in the world. But to what did it apply? The implications of the judgment in Serco is that Article 126 will apply only in three categories of cases:

(1) The “standard, normal or paradigm case” involves employees who are working in Northern Ireland at the time of the dismissal. (See paragraphs 25 and 27 of the judgment in Serco).

(2) Also covered are “peripatetic employees” who might spend much of their time outside Northern Ireland but who were nevertheless based here, in their capacity as employees, at the time of their dismissal. (See paragraph 30 of the judgment in Serco).

(3) Finally, Article 126 also, exceptionally, covers some other employees who are working and based abroad. We consider the limits of that third Serco category below.

27. The claimant’s situation,at the time of his dismissal, does not fall within the first of the Serco categories, because, at that time, he was not working in Northern Ireland. (Indeed, at that point, he had not been working for the respondent in Northern Ireland for many months).

28. The claimant’s situation, at the time of dismissal, did not fall within the second of the Serco categories either, because, at the time of dismissal, he was not “based” in Northern Ireland (in this capacity as an employee), in the sense in which the term “based” is used in Serco.

29. When the claimant began employment with the Employer, in October 2008, he was working in Belfast. He continued to work for the Employer in Belfast until September 2009.

30. From September 2009 until April 2010, he worked for the Employer in Manchester. (During that period, he was also working for the employer every weekend in Belfast.)

31. In April 2010, he moved to Sheffield. From April 2010 until June 2010, he worked for the Employer in Sheffield.

32. From 13 June 2010 until he went off for his Christmas holiday in December 2010, the claimant’s work was carried out, 100% of the time, either in Dublin or at locations in Great Britain. From 27 December 2010 until 10 January 2011, the claimant was working in London. When he was working in Dublin, he occupied accommodation which was provided there by the Employer. When he was working in London, he also occupied accommodation which was provided there by the Employer.

33. We asked the claimant and his brother, Kieran, to identify any Northern Ireland connection, within the context of the relevant contract of employment. They identified the following. First, the claimant had been recruited in Belfast. Secondly, his contract of employment with the Employer imposed a requirement upon him, at all times, to work anywhere within the United Kingdom, as directed by the Employer. Thirdly, throughout his period of employment with the Employer, he always considered his home permanent address to be his family’s home, at Poleglass, which is just outside Belfast. Fourthly, throughout the claimant’s period of employment with the Employer, the claimant’s payslip identified his address as being at the family home at Poleglass.

34. The third category of employees, as identified in Serco (see paragraph 26 above) was referred to in Duncombe, at paragraphs 9-17 of the judgment in Duncombe. That third category covers some employees who are working outside Northern Ireland, or who are based outside Northern Ireland. It seems that, in order to come within the third Serco category, the relevant employment must have much stronger connections both with Northern Ireland and with Northern Ireland employment law than it has with any other system of law. (See paragraph 8 of Duncombe.)

35. In our view, having regard to the factual context of this case, it is clear that the claimant’s employment, at the time of his dismissal, had much stronger connections with other legal systems, as compared to any connections it then had with the employment law of Northern Ireland, or with the Northern Ireland legal system.

36. We reserved our decision in this case. At the end of the main hearing, we told Kieran Gallagher that it would be wise for a claim of unfair dismissal to be lodged in London, on the claimant’s behalf, pending the issuing of our Decision, in case (as we have now done) we were to decide that Article 126 of the Order did not apply within the context of the claimant’s dismissal.

Chairman:

Date and place of hearing: 7 September 2011, Belfast.

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Gallagher v Great City Attractions Global ... [2011] NIIT 01112_11IT (30 September September 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/01112_11IT.html Cite as: [2011] NIIT 1112_11IT, [2011] NIIT 01112_11IT

Industrial Tribunals Northern Ireland Decisions