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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Fryers v Fisher Metal Group Limited (in... [2010] NIIT 139_10IT (09 November 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/139_10IT.html Cite as: [2010] NIIT 139_10IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 7596/09 and 139/10
CLAIMANT: Angela Catherine Hamilton Fryers
RESPONDENT: 1. Fisher Metal Group Limited (in administrative receivership)
2.
Fisher Metal Engineering LLP
(formerly known as
WR Fisher LLP)
3. The Department for Employment and Learning
DECISION
None of the claimant’s claims against Fisher Metal Group Limited (“the old employer”) is well-founded. Accordingly, all of those claims are dismissed. However, all of the following claims, which the claimant has made against Fisher Metal Engineering LLP (“the new employer”) are well-founded. Accordingly, it is ordered that the new employer shall pay the following sums to the claimant:
(i) the sum of £2,250 in respect of a redundancy payment; and
(ii) the sum of £1,190 in respect of pay in lieu of notice.
Constitution of Tribunal:
Chairman: Mr P Buggy
Members: Ms N Wright
Dr D Mercer
Appearances:
The claimant was self-represented.
There was no appearance on behalf of either of the employers.
The Department was represented by Mr P McAteer, Barrister-at-Law, instructed by the Departmental Solicitors Office.
REASONS
1. At the end of the hearing, we issued our decision orally. At the same time, we gave oral reasons for our decision.
2. Accordingly what follows is by way of summary only.
3. The claimant noted that other claimants (other claimants in this group litigation) had made TUPE consultation claims. The claimant’s claim form did not contain any such claim, however generously one construes it. We told the claimant that we would be willing to consider any application on her part, for leave to amend her claim form so as to include a TUPE consultation claim, but that any such application would have to be made on notice to both of the employers. Accordingly, any application for leave to amend her claim form (so as to include a TUPE claim) would have resulted in a postponement of the main hearing. The claimant noted that doubts had been expressed about the financial viability of both of the employers. She also noted that any TUPE consultation awards would not fall within the scope of the Department’s role as statutory guarantor (as the statutory guarantor in respect of certain employment debts). Against that background, the claimant decided not to pursue any application for permission to include TUPE consultation claims alongside the claims which she has already made in these proceedings.
4. In late 2009, the claimant was dismissed by reason of redundancy. No redundancy payment was made to her. She did not receive due notice of the termination of her employment, but no pay in lieu of notice was given to her.
5. The claimant told us that she had been paid her wages up-to-date and that she was not due anything in respect of accrued but unpaid holiday entitlements.
6. In the United Kingdom, the law relating to transfer of undertakings has been implemented in the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPER”).
7. The claimant was employed by the old employer. The old employer went into administrative receivership on 8 July 2009. The claimant received notification from the new employer that she was to be placed on temporary lay-off. The claimant was never subsequently contacted, either by the old employer or by the new employer, to resume work. She did receive her P45, prior to the end of the year 2009, from the administrative receiver of the old employer
8. The claimant made applications to the Department, for payments from the national insurance fund, in the Department’s role as the statutory guarantor (in respect of redundancy pay and in respect of notice pay). That application was unsuccessful.
9. In these proceedings, the claimant now confines herself to making the following claims, against both employers, namely a claim for her redundancy payment and a claim for pay in lieu of notice.
10. The claimant says that, at the time of the termination of her employment, her gross weekly wages were £300 per week, and that she was born in November 1961, and that she had completed five years complete service with the respondent when she was dismissed. She says that, at the time of her dismissal, her net weekly wages amounted to £238.
11. Both the claimant and the Department were agreed that there had been a TUPE transfer, in the Summer of 2009, whereby a relevant entity (the entity to which the claimant was then assigned) had transferred from the old employer to the new employer.
12. We are satisfied that the contentions of the claimant and of the Department in that context are correct. We are satisfied that there was a TUPE transfer, of the entity to which the claimant was then assigned, in May 2009. We are satisfied that, both before and after May 2009, the claimant was carrying out the same work, at the same premises, under the same immediate supervision, and was producing outputs in respect of the same circle of customers.
13. Because of the conclusions which we have reached in respect of the transfer issue, it follows that the claims against the old employer must be dismissed. (Any liabilities owed to this claimant by the older employer would have transferred, by operation of law, to the new employer. In any event, the claimant clearly was dismissed by the new employer, without notice, and by reason of redundancy, at a time when the claimant’s contract of employment had already transferred to the new employer).
14. The claimant has decided not to pursue any appeal against the Department’s refusal of her applications to them. Accordingly, those appeals are dismissed. It has been agreed between the claimant and the Department that the outcome of those appeals will have no bearing on the outcomes of any statutory applications which the claimant may make in future to the Department (in its role as statutory guarantor) arising out of any possible failure on the part of the new employer to comply with the payment obligations which have been imposed upon it by this Decision.
15. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 21 October 2010, Belfast
Date decision recorded in register and issued to parties:
