THE INDUSTRIAL TRIBUNALS

CASE REF:  562/15

CLAIMANT:			Raymond John Brownfield

RESPONDENT:		Miguel Governo
				trading as James Orr Engineering

DECISION 
The unanimous decision of the tribunal is that the claimant is entitled to pay in lieu of notice amounting to £2,420.40 in respect of six weeks unpaid notice and statutory redundancy pay amounting to £4,700, totalling £7,120.40

Constitution of Tribunal:
Vice President:		Mr N Kelly
Members:			Mrs S Doran
				Mr M Grant

Appearances:
The claimant was represented by Mr S Doherty, Barrister-at-Law, instructed by McCartan Turkington & Breen, Solicitors.

The respondent appeared in person and was unrepresented. 

Issues

1.	This was a claim of either alleged automatically unfair dismissal (non compliance with statutory procedure), alleged substantively unfair dismissal, alleged failure to pay notice pay and alleged failure to pay a statutory redundancy payment.  The claimant did not pursue the claims of alleged unfair dismissal but did pursue the claims in respect of notice pay and a statutory redundancy payment.  

2.	The claim form did include a claim in respect of alleged failure to pay holiday pay.  However, the tribunal heard no evidence in relation to that claim and it was not pursued by the claimant.

Facts

3.	The claimant had been one of three service engineers employed by the respondent to work exclusively in the Belfast area.  The respondent had been at all relevant times based in Kilmarnock in Scotland.  He left the three engineers to work on their own and to decide who did what and when.  They had no fixed starting and finishing time and there was no direct or real supervision by the respondent of the three engineers.

4.	The claimant had been employed by the respondent from 1 September 2004 to 31 December 2014.  They were good friends and the claimant had been best man at the respondent’s wedding.  His date of birth was 11 January 1973.  His gross pay had been £2,208.33 per month and his net pay £1,748.05 per month.  According to his claim form he had either worked or had been paid for four weeks notice.  

5.	The three engineers were employed by the respondent to work on contracts for part of what is now the Belfast Health and Social Care Trust.  The three contracts were:

			(i)	acute care;

			(ii)	North and West Primary Care;

			(iii)	South and East Primary Care.

	The work involved servicing and repairing hoists, beds and other hospital equipment.

6.	The relevant contract work was retendered at the end of 2014 by the Belfast Trust.  The respondent was unsuccessful in that retendering exercise.  The Acute Care contract and the South East Primary Care contract went to J Y Hygiene Supplies Limited.  The North West Primary Care contract went to Abbey Medicare Limited.  

7.	The other two engineers moved to the new contractors:  David Roberts to Abbey Medicare Limited and Arthur McKee to J Y Hygiene Supplies Limited.  Neither of the new contractors employed the claimant.  The respondent in this hearing, Mr Governo, had no work for him in Northern Ireland and was advised by ACAS in Scotland that since the claimant had refused to transfer, the claimant had effectively resigned and the respondent had no liability in this matter.   

8.	On 19 March 2015 the claimant lodged tribunal proceedings naming three respondents.  Those were the respondent, who at that stage was the first-named respondent, J Y Hygiene Supplies Limited who at that stage was the second-named respondent and Abbey Medicare Limited who at that stage was the third-named respondent.  For the avoidance of confusion those designations will apply in the rest of the decision.  The tribunal claims against the second and third named respondents were in identical terms to those against the first-named respondent.  The claims against the second and third named respondents were settled between the parties.  The terms of those settlements are not known to the tribunal.  However, the claimant elected to proceed also against the first-named respondent who had been his original employer.  

9.	The claimant’s counsel candidly accepted that there could be no claim for future loss in this case should an unfair dismissal claim be upheld.  The first-named respondent had lost all Northern Ireland work and was not in a position to employ the claimant any further.  There could be no compensatory award of any significance and therefore no uplift to any such award.  The claimant’s counsel therefore did not pursue the claim of an automatically or substantively unfair dismissal and concentrated instead on the claims for a statutory redundancy payment and notice pay.  As indicated above, there was no mention of holiday pay and no evidence in relation to holiday pay.  Since four weeks’ notice or pay in lieu of notice had been given, the claims in relation to statutory redundancy pay and notice pay amounted to £7,120.37 in total.

10.	The first-named respondent accepted that the claimant had been his employee for ten complete years up to 31 December 2014.  He did not seek to argue that the claimant had been employed at any stage by a limited company or indeed by anyone else.  The first-named respondent’s evidence throughout the hearing was clear, consistent and credible.  

11.	The central issue before the tribunal was whether the claimant’s original employment with the first-named respondent had remained with that respondent at the date of the termination (31 December 2014) or whether it had transferred as a service provision change, pursuant to the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 (“the 2006 Regulations”) to either of the potential transferees, the second and third named respondents, with whom the claimant had already settled his claims.  

12.	If the claimant’s employment with the first-named respondent had not transferred to either the second or to the third-named respondents under the 2006 Regulations, and had in fact remained with the first-named respondent, there would be a potential liability arising out of the termination of that employment, comprising a claim for statutory redundancy pay and notice pay.  If, on the other hand, the claimant had transferred to the second-named or to third-named respondent, or indeed if his employment had in some way come to a conclusion before the date of potential transfer, the remaining respondent would have no liability.  

13.	There was a surprising dearth of corrobative evidence in this case.  The unrepresented and unadvised respondent had no records relating to the allocation of work between the three contracts at the hearing.  Given the way in which it is clear that he had operated the relevant contracts in Northern Ireland up to 31 December 2014, by leaving everything including the allocation of work to the three engineers, that may not be that surprising.  

14.	However, neither party called, or sought to call, either Arthur McKee or David Roberts to the substantive hearing of this matter.  Both would have been in a position to provide valuable evidence in relation to the division of work before 31 December 2014 and in relation to the way in which they both had gained employment with the second and third-named respondents respectively.  There had been no attempt by the first-named respondent to obtain relevant documentation from the Belfast Trust or to produce it from his own records.

	Furthermore there had been no application from either party for third party discovery of the relevant documentation e.g. orders, invoices, receipts for 2014 from the Belfast Trust.  The Trust would have had to have held some documentation in that respect.  That documentation may have been capable of indicating who worked where and when in relation to the three contracts and therefore may well have been relevant in determining whether the claimant should have transferred under the Service Provision Regulations.  Equally, neither party called any witness from the second or third named respondents who might have been able to shed some light on whether there had been a service provision change.  

	The claimant did not produce any diary, work records or any written documentation whatsoever to support his claim that he had worked equally on all three contracts.  His claim in cross-examination that he had in fact worked equally for all three contractors is not supported by any documentary or other corroboration.  
		
15.	Importantly, there was no evidence whatsoever on the respective weight to be attached to each of the three contracts.  On the evidence before the tribunal, it was possible that, for example, 90% of the relevant work had been required in relation to one contract and 5% of the relevant work had been required in relation to each of the two other contract areas.  It would appear to the tribunal that it would have depended very much on the amount of equipment in each of the three contracts which required servicing or repair and how those contracts worked in practice.  On the evidence before us, there can be no automatic assumption that each of the three contracts had been exactly the same in terms of the amount of work involved and therefore that they were automatically the same in terms of the 2006 Regulations.  

16.	The tribunal heard this matter on 21 January 2016.  It only heard evidence from the first-named respondent and from the claimant.  The first-named respondent took the simplistic view that he had lost the three contracts in Northern Ireland; that the claimant had refused to transfer to the second-named respondent and that he had effectively resigned.  He stated candidly that he did not know how the work had been divided in practice between the three engineers up to the end of 2014.  They had worked on their own and he left that completely up to them.  That was not disputed by the claimant.  The first-named respondent therefore denied any liability for unfair dismissal, redundancy pay or notice pay. 

17.	The claimant alleged that he had not been subject to a service provision change transfer and that he had not in fact been offered any post by either the second or third-named respondents.  He stated he had worked equally between the three contract areas but as indicated above no documentary or supporting evidence was produced to support this statement.  He argued that the first-named respondent had remained his employer and that he had been dismissed unfairly, with no redundancy payment and with no notice.  

18.	It is clear and apparently not in contention, that David Roberts had been offered and had accepted employment with the third-named respondent – Abbey Medicare Limited.

19.	The second-named respondent – J Y Hygiene Supplies Limited – invited all three engineers to separate meetings at the Mourne Country Hotel in Newry during December 2014.  David Roberts had by this stage accepted a job with Abbey Medicare Limited.  He attended this meeting as a matter of courtesy.  

20.	Arthur McKee was employed by the second-named respondent as a result of his meeting with the second-named respondent.  

	The second-named respondent had accepted that Mr McKee was given the same pay and terms and conditions of service as a relevant transfer.

21.	The claimant alleged that he had never been offered a job by the second-named respondent.  He stated that his meeting had gone well and had been friendly.  He had gone from Belfast to the Mourne County Hotel in Newry to meet an individual called Gavin and one other.  The claimant alleged not just that he had not been offered a job but that he had been told during the meeting by Gavin that the second-named respondent had already employed another engineer (other than Arthur McKee) and there had been no vacancy for him.  There was no other evidence before the tribunal that another engineer had been recruited in this manner by the second-named respondent.  It seems odd that that such evidence was not before the tribunal as part of these proceedings.  The tribunal would have thought that this issue would have been clarified in the course of interlocutory proceedings and that the claimant would have been in a position to have named the engineer who had been employed and to have indicated when and how he had been employed.  In any event the tribunal prefers the evidence of the first-named respondent in this matter.  It is simply not credible that the claimant had been asked to travel some 30 miles from Belfast to Newry simply for a vague and undefined chat.  It is highly probable that the only purpose for such a meeting would have been to offer employment to a potentially transferred employee.  It seems highly improbable that the second-named respondent would have arranged such a meeting in any other circumstances.  Equally, it is highly improbable that an experienced contractor would have, as alleged by the claimant, hired another employee in these circumstances before the meetings with potentially transferred employees and before considering their legal obligations.  Furthermore, since the second-named respondent had been represented by a firm of solicitors at the earlier stages of these proceedings, the identity of any engineer employed as alleged by the claimant would have been clarified long before now, if he had indeed existed.  The evidence of the claimant in relation to this meeting is contrary to the stated position of the second-named respondent as set out in its response form. While no evidence was given by that respondent in this matter, after it had settled, the pleadings lodged on its behalf cannot be ignored although they have to have less weight than sworn evidence.  The response stated:

	“At a meeting on 10 December 2014, the claimant spoke with representatives of the second-named respondent.  He made it clear that in no uncertain terms that he did not wish to transfer to the employment of the second-named respondent.  He stated that he wished to get “his redundancy” from whoever was liable for it and to use it to open up a cycle repair shop.”   

The response continued:

		“He went on to state that if he was forced to transfer he would carry out jobs with half a heart.  He recommended that the second-named respondent should hire Arty McKee and make him (i.e. the claimant) redundant”

The response on behalf of the second-named respondent is consistent in that respect with the response filed on behalf of the third-named respondent which stated they had offered the claimant a position and:

“The claimant informed the 3rd respondent he had had enough of the industry and declined their offer.” 

The evidence of the claimant in relation to his meeting with the second-named respondent does not appear credible.

22.	Furthermore, the claimant also alleged that he had now sworn during the meeting with the second-named respondent and that he had not displayed a bad attitude or had been abusive.  The first-named respondent disputes this evidence.  He states that he had been contacted by Gavin by telephone shortly after the meeting.  He states that Gavin told him that the claimant had sworn during the meeting and that the claimant had also told the second-named respondent that he didn’t want to transfer and that if he were transferred he would not put his heart into any job.

23.	This evidence from the first-named respondent in this respect is admittedly hearsay but it is supported by an e-mail from Gavin in the second-named respondent’s company, in which he recounts the meeting, and indeed by the response filed on behalf of the second-named respondent.

24.	The first-named respondent’s evidence is also consistent with the fact that Mr McKee was given employment by the second named respondent and also with the claimant’s stated wish from the 31st December 2014 to start his own business and not to continue in employment.  He has since started that business but there is no evidence before the tribunal in relation to the date on which that business was started.

25.	The tribunal again prefers the evidence of the first-named respondent in this matter.  It concludes that the claimant refused employment with the second-named respondent and that he had been abusive during the meeting.  The claimant’s version of this meeting is simply not credible.  It is highly unlikely that he would have been invited to a vague chat as he alleged.  It is also highly unlikely that the second-named respondent would send an e-mail recounting details of the claimant’s behaviour during that meeting if the content of that email had been entirely falsified.  

Furthermore, as indicated above, the claimant alleged that he had not sworn during the course of that meeting.  However the first-named respondent produced a series of e-mails which had passed between the claimant and himself.  In those the claimant sworn liberally and stated:

		“He [Gavin for the second-named respondent] has went over the top in his e-mail, certainly twisting a lot of stuff at that meeting.  He is a dirty boy.  My solicitor told me the meeting means duck (sic) all, employment first then meetings to discuss redundancy etc, also now he is treating me differently from Artie (Arthur McKee) so he has just fucked himself legally – just don’t tell him that.”

	The claimant had also stated in this series of e-mails to the first-named respondent:

		“I am taking these boys [the second-named respondent] to court – will be touch.  I am fukien (sic) raging.”

It seems the claimant was not averse to swearing and having observed the parties give evidence, the tribunal concludes that it is more likely than not that the claimant swore during the December meeting. 

26.	It seems clear that the claimant, after discussion with his solicitor, felt that he should have transferred to the second-named respondent. As indicated in those emails from the claimant to the first-named respondent, his belief following discussions with his lawyer, was that he should have been employed by the second-named respondent in the same way as Arthur McKee and that he should then be paid redundancy.  The tribunal does not know the nature of the settlement reached between the claimant and the second-named respondent or indeed the nature of the settlement reached between the claimant and the third-named respondent.  

27.	At 17.04 on 21st January 2016, after the conclusion of the tribunal hearing but before the tribunal reached its decision in this matter, the first-named respondent e-mailed the tribunal to state inter alia:

	“Following leaving the tribunal offices I received a phone call from both Artie McKee and David Roberts, I haven’t spoke to David Roberts for a year now and I have been informed by both engineers that Raymond Brownfield had in fact not been carrying out any service work for James Orr Engineering since June 2014 to 31 December 2014 and not handing in any service sheets.  I asked the lads why this was not reported to me in the past and they have stated that Ray and I were “thick” as in best mates and didn’t want to rock the boat by tittle tattle to me.  I am very disappointed to hear this news and hope that this information will reflect somewhat more on the particular person we are dealing with her.  Both parties are willing to testify to this and I am now going to be presenting this information to my solicitor in Glasgow to pursue the matter”.   

28.	On the next day, 22 January 2016 at 12.18, the first-named respondent sent a further e-mail to the tribunal stating:

	“Just had reports through from Belfast Trust going back to January 2014 and unfortunately it appears that he hardly attended his work all year.”

29.	Following receipt of these two e-mails the two parties were advised in the following terms by the Tribunal Office:

	“I can advise you that the tribunal has not yet reached a decision, and the e-mails are being treated as an application to introduce further evidence.  A telephone conference case management discussion will be arranged to discuss the matter in due course.”

30.	The telephone conference case management discussion was held on 4 February 2016 to consider the first-named respondent’s application to call two additional witnesses and to introduce a substantial amount of additional information.  That application was ultimately refused.  The evidence had closed; the respondent had not forwarded the relevant documentation in response to a clear Notice for Discovery, or at all, and he had not sought the attendance of the two witnesses at any stage until the evidence had closed.  It was also clear that the first-named respondent had access to legal advice which he could have used earlier.  

RELEVANT LAW

31.	If an employee is dismissed on the ground of redundancy he is entitled to a statutory redundancy payment calculated in accordance with the Employment Rights (NI) Order 1996.

32.	The 2006 Regulations set out the circumstances in which the employment of a person should transfer as a result of a service provision change.  The circumstances of the present case where the service provided by the first-named respondent for the Belfast Trust up to 31 December 2014 transferred on that date to two other service providers, the second and third-named respondents potentially attracted the 2006 Regulations.

	If the 2006 Regulations had been attracted, the employment of the claimant would not have terminated but would have transferred as a matter of law.  He would not have been dismissed.  

33.	The service transferred to two service providers rather than to one service provider.  The respondent argued that this meant the 2006 Regulations would not apply.  This was incorrect.

	It is only where the post-transfer position has been so fragmented that it was not possible to identify a transfer, that the 2006 Regulations may not be engaged.  

34.	In Harvey Vol 2, Division F, para 72.27 – para 72.29, the position is set out.  It refers to an ET decision in Thomas-Jones –v- Cornwall County Council (unreported) and to an EAT decision in Ancers –v- Clearspring Management Ltd UKEAT 00154 108 where the relevant services were either routed to whoever was available or were randomly allocated.  That is not the situation in the present case where clearly identifiable work passed to each of the two potential transferees.  It is however the case that such evidence was not produced to the tribunal.

35.	For a claim for a statutory redundancy payment or for a claim for pay in lieu of notice to succeed, the claimant must have been dismissed by the respondent.  The onus of proof to establish that dismissal is on the claimant – see Harvey Volume 1, Division D1, para 201.  
.  
DECISION

36.	The tribunal has concerns about parts of the claimant’s evidence.  However, on the evidence properly before it, the tribunal cannot conclude that the claimant’s employment transferred to either the second or third-named respondents.

37.	On the balance of probabilities, and on the limited evidence before the tribunal, it appears that his employment remained with the first-named respondent and that it did not transfer to either the second or third-named respondent.  The tribunal accepts that the claimant made it plain to the second-named respondent that he did not wish to work for it.  However, even if the claimant had actually refused further employment with the second-named respondent, it cannot be viewed as a refusal to accept a service provision change but simply as a refusal of alternative employment in the general sense.  There was no evidence on which the tribunal could properly find that there had been a service provision change.  The first-named respondent had access to the relevant records and did not produce them.  

38.	The tribunal, as indicated above, had significant doubts about parts of the claimant’s evidence.  However, in the absence of any service provision change, none of that removes the claimant’s statutory entitlement to a redundancy payment and to notice pay.

39.	The claimant also argued that he had never received a written set of terms and conditions of service as required by the Employment Rights (NI) Order 1996.  However, in a text dated 14 March 2012, the claimant had stated:

		“I know you don’t like talking about wages but as there is nothing concrete in my contract am I going to have to wait another year before I get a raise?”

	After observing the parties give evidence on this issue, the tribunal concludes, on the balance of probabilities, that this text was consistent with a written contract and conclude that the claimant had been given such a contract.    

Remedy

Notice Pay

40.	The claimant had been employed for 10 complete years and was therefore entitled under Article 118 of the Employment rights (NI) Order 1996 to 10 weeks notice. 

41.	Notice, or pay in lieu of notice, was given for four weeks.

42.	The claimant was therefore entitled to six weeks notice.

43.	Net pay for six weeks in lieu of notice is calculated as follows:

			Net monthly pay £1,748.05 x 12 =		£20,976.60 (Annual Net Pay)

			£20,976.70 divided by 52 =		£    403.40 (Weekly Net Pay)

			£403.40 x 6=					£ 2,242.40

Statutory Redundancy Pay

44.	The claimant was entitled to a statutory redundancy payment under the 1996 Order calculated in the following way:

			Gross weekly wage statutory cap		£   470

			£470 x 1 x 10 =				£4,700

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

Vice President:

Date and place of hearing:  21 January 2016, Belfast

Date decision recorded in register and issued to parties: