Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

 

CASE REF: 6045/18

 

 

CLAIMANT: Elana Michelle Fenton Brown

 

RESPONDENT: 1. Kook

2. Jim McCanny

3. Philip Emerson

 

 

 

 

 

DECISION

 

The Tribunal's decision is:-

 

1. It is ordered that the correct title of the respondents to these proceedings is Jim McCanny and Philip Emerson, trading as Kook.

 

2. (a) The tribunal makes a declaration that the claimant's claim that the respondents, and each of them, have made unauthorised deductions of wages, in respect of holiday pay, for the period in or about 17 November 2017 to 28 February 2018, is well founded; and orders the respondents, and each of them, to pay to the claimant the sum of £239.85.

 

(b) Further, the respondents, and each of them, are ordered to pay to the claimant, pursuant to Article 27 of the Employment Rights (Northern Ireland) Order 1996, the sum of £171.28 (85.64 x 2), having failed to provide to the claimant, pursuant to Articles 33(1) of the Employment Rights (Northern Ireland) Order 1996, a statement of initial employment particulars.

 

The total (a) plus (b) to be paid by the respondents, and each of them, to the claimant is £411.13.

 

3. Further, the tribunal makes a declaration that the respondents, and each of them, failed to provide to the claimant an itemised pay statement, pursuant to Rule 40 of the Employment Rights (Northern Ireland) Order 1996.

 

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone): Employment Judge Drennan QC

 

 

Appearances:

 

The claimant appeared in person and was not represented

 

The respondents did not appear and were not represented

 

 

Reasons

 

1.1 The claimant presented a claim to the tribunal on 18 May 2018 against Kook, in which she made a claim for unauthorised deductions of wages in respect of holiday pay and/or the failure to provide a statement of employment particulars and/or an itemised pay statement, in relation to her period of employment.

 

1.2 The said claim form was sent to the tribunal to the respondent Kook, by letter dated 11 June 2018, requiring a response to the said claim by 9 July 2018. No response was provided by the respondent Kook to the said claim. By letter dated 9 August 2018, which was sent to the claimant and the respondent, Kook, a Case Management Discussion was arranged for 22 August 2018. Following correspondence from Mr McCanny and Mr Emerson, on behalf of Kook, the Case Management Discussion was subsequently arranged for 29 August 2018 and the parties were so informed.

 

1.3 At a Case Management Discussion on 29 August 2018, as stated in the Record of Proceedings, dated 2 October 2018, on the application of the claimant, Mr Jim McCanny and Mr Philip Emerson were joined as respondents to the claimant's claim. Parties were notified that the substantive hearing of the case would take place on Thursday 1 November 2018 at 10.00 am. Copies of the said Record of Proceedings were sent to Mr McCanny and Mr Emerson by the tribunal, by letter dated 4 October 2018. Neither Mr McCanny or Mr Emerson attended the said hearing.

 

1.4 No response to the claimant's claim was received by the tribunal by the said respondents, and each of them, and they did not appear at the hearing on 1 November 2018, pursuant to the Notice of Hearing, dated 17 October 2018, which was sent to the claimant, Kook and Mr McCanny and Mr Emerson at the address of Kook, 41 Main Street, Bangor, Co Down, BT20 3BJ.

 

1.5 The substantive hearing on this matter commenced on 1 November 2018 and was reconvened on 8 November 2018.

 

1.6 Having adjourned the hearing on 1 November 2018 to reconvene on 8 November 2018, as referred to above, a Record of Proceedings, dated 2 November 2018, was sent to Kook, at 41 Main Street, Bangor, Co Down, BT20 3BJ but also to Mr McCanny and Mr Emerson at the same address.

 

 

 

1.7 I am satisfied the correct title to these proceedings is Jim McCanny and Paul Emerson, trading as Kook and I make an order to so amend the title of the respondents.

 

2.1 The claimant gave oral evidence to the tribunal and produced details from her bank statements of payments made to her during the course of her employment with the respondents.

 

In light of the evidence given by the claimant and having considered the documents provided by her, as referred to above, I made the following findings of fact, as set out below. In addition, the tribunal obtained documentation relating to a Winding-Up Order made pursuant to the Insolvency (Northern Ireland) Order 1989 in relation to a company called Copelands Hospitality Limited, which had traded at the same premises as Kook, as referred to during the course of the Case Management Discussion on 29 August 2018, as set out in the Record of Proceedings, dated 2 October 2018.

 

2.2 Findings of Fact

 

(i) The claimant was employed by Copelands Hospitality Limited from on or about 15 June 2017 until the said company was wound up on or about 16 November 2017. Thereafter, the claimant was employed from 17 November 2017 until 8 February 2018 by Jim McCanny and Philip Emerson, trading as Kook at the premises of Kook at 41 Main Street, Bangor, Co Down, BT20 3BJ.

 

(ii) The respondents, Mr McCanny and Mr Emerson from 17 November 2017 traded as Kook and were therefore the employers of the claimant from 17 November 2018 until 28 February 2018.

 

(iii) The respondents failed to pay to the claimant any holiday pay for the said period of her employment, following the termination of her employment on 28 February 2018, despite an acknowledgement by Mr McCanny that the holiday pay would be paid to her; but regretfully this did not take place.

 

(v) At no time, during the course of the claimant's said employment with the respondents, and each of them, was the claimant provided with an itemised pay statement, pursuant to Article 40 of the Employment Rights (Northern Ireland) Order 1996. During the course of said period, the claimant was paid into her bank account the total sum of £1,241.80, by the respondents, and each of them; but it was not apparent what deductions, if any, had been made by the respondents, in the absence of any such itemised pay statement, by the respondents, prior to the payment of such sums during the course of her said employment. The claimant was not provided with a statement of initial employment particulars when she was employed by Copelands Hospitality Limited; and, upon the commencement of her employment with Mr McCanny and Mr Emerson trading as Kook from on or ab out 17 November 2017, she was not provided with a statement of initial employment particulars, pursuant to Article 33(1) of the said 1996 Order. I have no doubt that, if the claimant had been provided, as she was entitled to receive, pursuant to Article 33(1) and Article 40(1) of the 1996 Order, with a statement of initial employment particulars and itemised pay statement, many of the difficulties that have arisen in this matter would have been able to be avoided. Regretfully, in addition to failing to provide the claimant with an itemised pay statement, the respondents, and each of them, have failed to provide to the claimant, following the termination of her employment, on 28 February 2017, with a P45, despite requests by her and an agreement by Mr McCanny to do so. I am satisfied the period of employment with Copelands Hospitality Limited is not relevant to any calculations for purposes of their proceedings, having been wound up. In such circumstances, I am satisfied the TUPE Regulations do not apply to these proceedings.

 

(iv) Pursuant to the appropriate calculation, in accordance with the HMRC Irregular Hours Holiday Pay calculation guidance, the respondents, and each of them, failed to pay to the claimant, in relation to her said period of employment, holiday pay in the sum of £239.85.

 

3. Under Article 27 of the Employment (Northern Ireland) Order 2003 it is provided:-

 

(i) This Article applies to proceedings before an Industrial Tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule 4

 

....

 

(3) If in the case of proceedings to which this Article applies:-

 

(a) The Industrial Tribunal makes an award to the employee in respect of the claim to which the proceedings relate; and

 

(b) When the proceedings were begun the employer was in breach of his duty to the employee under Article 33(1) and Article 36(1) of the Employment Rights Order.

 

The tribunal shall, subject to paragraph 5 (increase the award by the minimum amount) and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount instead.

 

(4) In paragraphs (2) and (3):-

 

(a) References to the minimum amount are to an amount equal to two weeks' pay; and

 

(b) References to the higher amount are to an amount equal to four weeks' pay.

 

(5) The duty under paragraph 2(iii) does not apply if there are exceptional circumstances which would make an award or increase under that paragraph unjust or unequitable.

 

4. The claimant's claim for unauthorised deductions of wages is a claim which falls within Schedule 4 of the 2003 Order. Given the failure of the respondents, and each of them, to provide to the claimant a statement of initial employment particulars on commencement of her said employment with the respondents, pursuant to Article 33(1) of the 1996 Order, I am satisfied that the claimant is entitled, pursuant to Article 27 of the 2003 Order to an increase in the award, made for unauthorised deductions of wages, by two weeks' pay. I am not satisfied that it is just and equitable in all the circumstance, to increase the award, pursuant to Article 27 of the 2003 Order, to four weeks' pay. I think an increase in the amount of two weeks' pay is sufficient in the circumstances, having regard to the length of the period of employment. Given that the respondents have not provided to the claimant an itemised pay statement and have merely paid monies into her bank account during the course of her said employment, I had limited information upon which to base the appropriate sum for a week's pay in order to make a relevant calculation, pursuant to Article 27 of the 2003 Order. Doing the best that I could, in the circumstances, I concluded that a week's pay, in the particular circumstances of this case, and the limited facts before me, was £85.64 per week, in circumstances where the total sum of £1,241.88 had been paid by the respondents, and each of them, to the claimant during the period of her said employment. I had no evidence before me that there were exceptional circumstances which would make an award, pursuant to Article 27 of the 2003 Order unjust or inequitable.

 

5. In light of the foregoing, I therefore concluded:-

 

(a) The claimant's claim that the respondents and each of them had made unauthorised deductions of wages, in respect of holiday pay for the period 17 November 2017 to 28 February 2018 was well founded and I so declare; and I order the respondents and each of them to pay to the claimant the sum of £239.85. Further, I make an order that the respondents and each of them are ordered to pay to the claimant, pursuant to Article 27 of the Employment Rights (Northern Ireland) Order 2003, the sum of £171.28 (85.64 x 2); having failed to provide to the claimant pursuant to Article 33(1) of the Employment Rights (Northern Ireland) Order 1996 an initial statement of employment particulars. The total award therefore to be paid by the respondents and each of them to the claimant is £411.13.

 

(b) Further, I make a declaration that the respondents, and each of them, have failed to provide to the claimant an itemised pay statement, pursuant to Rule 40 of the Employment Rights (Northern Ireland) Order 1996. However, in the absence of any other relevant evidence, I am not prepared to make any order for payment by the respondents, and each of them, of any un-notified deductions during the period of the claimant's period of employment, pursuant to Article 44(4) of the Employment Rights (Northern Ireland) Order 1996.

 

 

 

 

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

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 1 and 8 November 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: