Donaldson v Tony Pinion [2011] NIIT 01139_11IT (28 September September 2011)

THE INDUSTRIAL TRIBUNALS

CASE REF: 1139/11

CLAIMANT: Hazel Donaldson

RESPONDENT: Tony Pinion

DECISION

The decision of the tribunal is that the claimant is entitled to £581.64 notice pay, £986.85 redundancy pay and £182.90 holiday pay.

Constitution of Tribunal:

Chairman (sitting alone): Mr S A Crothers

Appearances:

The claimant appeared and represented herself.

The respondent had not entered a response to the claim. However, the respondent attended to assist the claimant.

The Claim

1. The claimant claimed that she was entitled to a redundancy payment and notice payment. She also sought an amendment of her claim to include a claim for outstanding holiday pay.

The Issues

2. The issues before the tribunal were as follows:-

(1) Whether the claimant is entitled to a sum in respect of notice pay.

(2) Whether the claimant is entitled to a redundancy payment.

(3) Whether her claim should be amended to include a claim for outstanding holiday pay.

Sources of Evidence

3. The tribunal heard evidence from the claimant and considered relevant documentation in the course of the hearing.

Findings of Fact

4. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact, on the balance of probabilities:-

(i) The claimant commenced employment with the respondent on 21 December 2006 until 30 November 2010, being the effective date of termination of her employment. Her date of birth is 10 November 1956. The claimant was aged 54 at the effective date of termination of her employment. Her evidence before the tribunal was that her gross weekly wage was £219.30 (£193.88 net).

(ii) The tribunal is satisfied that the claimant was made redundant by the respondent and that she did not receive a redundancy payment or notice pay.

(iii) In relation to the proposed amendment to her claim in relation for 2.83 days’ holiday pay, the tribunal accepts the claimant’s evidence that the omission of a claim for holiday pay was entirely her own fault, that she did not know enough about holiday pay to make such a claim and in any event thought that the existing claim would have covered such a claim. The claimant only became aware of the need to amend her claim in conversation with the Labour Relations Agency at an unspecified date in August 2011.

(iv) The claimant presented her claim to the tribunal on 10 May 2011.

The Law

5. (i) Article 170 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) states as follows:-

“170. - (1) An employer shall pay a redundancy payment to any employee of his if the employee:-

a. Is dismissed by the employer by reason of redundancy, …

(2) Paragraph (1) has effect subject to the following provisions of this Part (including, in particular, Articles 175 - 179, 184 - 187, 190 - 196 and 199).”

(ii) Article 180(5) of the Order provides as follows:-

“Where -

a. the contract of employment is terminated by the employer;

b. the notice required by Article 118 to be given by an employer would, if duly given on the material date, expire on a date later than the relevant date (as defined by the previous provisions of this Article).

For the purposes of Articles 23(3), 190 and 197(1) the later date is the relevant date.”

(iii) Article 180(6) provides that “the material date” means the date when notice of termination was given by the employer, or where no notice was given, the date when the contract of employment was terminated by the employer.

(iv) Article 197 of the Order provides for the amount of redundancy payment.

(v) The tribunal also considered the provisions of the Order relating to unlawful deductions from wages, together with the relevant provisions of the Working Time Regulations 1998 (as amended), insofar as relevant.

(vi) The provisions in relation to breach of contract are contained in the Industrial Tribunal’s Extension of Jurisdiction Order (Northern Ireland) 1994.

(vii) In relation to amendments, Harvey on Industrial Relations and Employment Law (“Harvey”) states at T[311.03] ff:-

“A distinction has to be drawn between (i) amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint; (ii) amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as the original claim; and (iii) amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all.

[312] Amendments falling within category (i) are not affected by the time limits, as the nature of the original claim remains intact, and all that is sought to be done is change the grounds on which that claim is based.

…

[312.01] So far as category (ii) is concerned, the tribunals and courts have always shown a willingness to permit a claimant to amend to allege a different type of claim from the one pleaded if this can be justified by the facts set out in the original claim. It is usually described as putting a new ‘label’ on facts already pleaded.

…

[312.02] The position is, therefore, that if the new claim arises out of facts that have already been pleaded in relation to the original claim, the proposed amendment will not be subjected to scrutiny in respect of the time limits, but will be considered under the general principles applicable to amendments, as summarised in Selkent”.

…

[312.04] “It is only in respect of amendments falling into category (iii) – entirely new claims unconnected with the original claim as pleaded – that the time limits will require to be considered. In that situation, the tribunal must consider whether the new claim is in time and, if it is not, whether time should be extended to permit it to be made (Selkent Bus Co Ltd –v- Moore [1996] ICR 836 at 843H). In order to determine whether the amendment amounts to a wholly new claim, as opposed to a change of label, it will be necessary, as a matter of construction, to examine the case as set out in the original application to see if it provides the necessary ‘causative link’ with the proposed amendment (see Housing Corpn –v- Bryant [1999] ICR 123, CA). In that case, the failure of the claimant to make any reference in her unfair dismissal claim to alleged victimisation defeated her subsequent application to amend the originating application to include a victimisation claim under the SDA, s4. According to Buxton LJ, the absence of a causative link in the application was fatal to the proposed amendment, which was ‘effectively an entirely new claim, brought well out of time’. Likewise, in Harvey v Port of Tilbury (London) Ltd (1999) IRLR 693, [1999] ICR 1030, EAT, a claimant who brought an unfair dismissal complaint, alleging unfair redundancy selection, was held not to be able to amend out of time by adding a claim of disability discrimination under the DDA s 8. Again, the basis of the refusal was that the proposed amendment was the addition of an entirely new cause of action unconnected with the original claim.”

Harvey continues at 312.07 as follows:-

“Although the decisions in the above cases seem to suggest that, where an entirely new claim is being advanced by way of amendment, the critical question is whether it is in time and, if not, whether an extension should be granted under the statutory ‘escape clause’ relevant to that claim, other divisions of the EAT have held that, even in the case of an entirely new claim made out of time, there is a residual discretion to allow the amendment to be made on the basis of the hardship/injustice criteria mentioned in Selkent, and in British Newspaper Printing Corpn (North) Ltd v Kelly [1989] IRLR222, CA (see para [314]), rather than on the statutory basis. Thus in Lehman Brothers Ltd v Smith (EAT/486/05, 13 October 2005), Judge Peter Clark upheld a tribunal decision allowing such an amendment to be made on this ground even though the relevant statutory criterion for granting an extension of time was reasonable practicability. And in Transport and General Workers Union v Safeway Stores Ltd (EAT/92/07, 6 June 2007), Underhill J allowed a new out-of-time claim under the consultation provisions of TULRA and TUPE to be made by way of amendment, and in doing so applied the hardship/injustice test, rather than reasonable practicability, which again was the statutory basis for extending time. Both of these decisions relied on Selkent and Kelly, where Lord Donaldson MR endorsed the seven-point procedure he set out in Cocking v Sandhurst, below, as authority for the proposition that the hardship/injustice test takes precedence over the relevant statutory test. According to Underhill J in the Safeway case, ‘the position on the authorities is that an employment tribunal has a discretion in any case to allow an amendment which introduces a new claim out of time’ (para 7), though he did add: ‘No doubt the greater the difference between the factual and legal issues raised by the new claim and by the old the less likely it is that it will be permitted, but that will be discretionary consideration and not a rule of law’ (para 13).”

(viii) Subject to the amendment issue, the tribunal considered the case of Palmers and Saunders v South End-On-Sea Borough Council (1984) IRLA 119 CA in relation to the meaning of the words “reasonably practicable” in the context of the relevant time limits. It was held in that case that the meaning of the words “reasonably practicable” lie somewhere between reasonable on the one hand and reasonably, physically capable of being done on the other. The best approach is to read “practicable” as the equivalent of “feasible” and to ask “was it reasonably feasible to present the complaint to the Employment Tribunal within the relevant 3 months?”

The Court of Appeal also held in that case that whether it was reasonably practicable for a complaint to be presented in time is pre-eminently an issue of fact for the tribunal, taking all the circumstances of the given case into account. Therefore, a tribunal may wish to consider the substantial cause of the employee’s failure to comply with the statutory time limit, whether he had been physically prevented from complying with the limitation period, for instance, by illness or a post-strike or something similar. It may be relevant for the tribunal to investigate whether, at the date of dismissal, and if not when thereafter, the employee knew that he had the right to complain of unfair dismissal; in some cases the tribunal may have to consider whether there was any misrepresentation about any relevant matter by the employer to the employee. It will frequently be necessary for the tribunal to know whether the employee was being advised at any material time and, if so, by whom; of the extent of the advisor’s knowledge of the facts of the employee’s case; and of the nature of any advice which they may have given him. It will probably be relevant in most cases for the tribunal to ask itself whether there was any substantial failure on the part of the employee or his advisor which led to the failure to comply with the time limit.

Conclusions

6. Having applied the relevant principles of law to the findings of fact the tribunal concludes as follows:-

(i) It is satisfied that the claim should be amended to include a claim for holiday pay and that time should be extended accordingly. The claimant is therefore entitled on the basis of an average working pattern of three days per week, to £64.63 (£193.88 ÷ 3) x 2.83 = £182.90.

(ii) The claimant is entitled to three weeks’ notice pay at £193.88 per week = £581.64.

(iii) The claimant is also entitled to 4½ weeks’ redundancy at £219.30 per week = £986.85.

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

Chairman:

Date and place of hearing: 19 September 2011, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Donaldson v Tony Pinion [2011] NIIT 01139_11IT (28 September September 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/01139_11IT.html Cite as: [2011] NIIT 01139_11IT, [2011] NIIT 1139_11IT

Industrial Tribunals Northern Ireland Decisions