O' Kane v Michael Young Younger Homes Ltd [2011] NIIT 02632

THE INDUSTRIAL TRIBUNALS

CASE REF: 2632/10

CLAIMANT: Charlotte O’Kane

RESPONDENTS: 1. Michael Young

2. Younger Homes Ltd

DECISION

The Decision of the Industrial Tribunal is:

(i) that the claimant was employed by Younger Homes Ltd and accordingly the first named respondent is dismissed from the proceedings;

(ii) the claimant terminated her employment with notice to the second named respondent on foot of a period of “lay off”, and accordingly is entitled to monies in respect of redundancy pay. The second named respondent is ordered to pay to the claimant the sum of £1,505.00,

Constitution of the Tribunal:

Chairman (sitting alone): Ms M Sheehan

Appearances:

The claimant appeared on her own behalf.

Mr Michael Young, as director in Younger Homes Ltd appeared on behalf of the respondents.

The Issues

1. The main issues for the tribunal to decide were (a) who was the claimant’s employer at the effective date of termination of employment; (b) was the claimant eligible for redundancy payment by reason of being laid off and (c) the amount of any redundancy payment due in respect of same. While the claimant had submitted a claim for monies in respect of holiday pay and other outstanding monies, she accepted at the outset of the hearing that those claims had been discharged and were withdrawn.

The Facts

2. The tribunal considered the claim form and the response filed by the second named respondent. There was also oral evidence given by the claimant and Mr Michael Young. A bundle of documents was produced at the hearing by the claimant and the respondent’s representative. The documents ranged from written offer of employment, statement of main terms and conditions and various correspondence between the parties prior to and after the “lay off” period and the notice of intention from the claimant to the second named respondent to claim a redundancy payment. A letter dated 11 April 2011 signed by Michael Young on behalf of Younger Homes Ltd was faxed and posted to the Office of the Industrial Tribunals and Fair Employment Tribunal accepting redundancy payment was still outstanding due to financial difficulties of the second named respondent. On the basis of the evidence received we make the following findings of fact.

3. The claimant when employed initially at Younger Homes Ltd, on 1 March 2004, was aged 20 years of age and aged 26 years of age when she terminated that employment. She was given a written offer of employment and a statement of main terms and conditions of employment which indicated her employer was the second named respondent. The second named respondent produced a copy of that document at the hearing. The claimant received a letter of offer of employment which amongst other matters set out that a “period of notice of 1 month will be offered in the event of resignation”. The claimant’s written statement of terms and conditions of employment included no express provision regarding “lay of” or “short time”. Other employees who were also before the tribunal at the same hearing as this claimant but employed at an earlier date to this claimant did have written statements of terms and conditions which included such a clause. There had been earlier “lay off” periods in 2009 and this claimant, like others, had remained in the second named respondent’s employment subsequent to the period of lay off. These “lay off” periods in 2010 followed on from changes in pay arrangements proposed in January 2010 by the respondent company as well as an agreed reduction in pay some years previously.

4. The claimant was employed as a clerical officer. The claimant was employed at an hourly rate of pay and it became clear in evidence that in the last year of her employment she was being paid at an hourly gross rate of £7.00 per hour. The claimant’s normal contractual hours were 42.5 hours per week. Although the offer of employment indicated that the “period of notice of 1 month will be offered in the event of resignation” clause 12 of the statement of terms and conditions set out variable periods of notice to be given or entitled to receive in the event of termination – which post 2 years service amounted to one week for each year of service – up to a maximum of 12 weeks.

5. By letter dated 20 September 2010 the claimant sought clarification from the second named respondent as to whether they could guarantee her full employment and pay for the following 13 weeks as she had been placed on short time for a period before this letter. Initially she was working ten hours per week but after a period of six continuous weeks she received a letter dated 9 August 2010 indicating that the temporary lay-off was to extend for a further six weeks. In the same letter dated 20 September 2010 the claimant gave notice to Younger Homes Ltd of her intention to claim a redundancy payment, unless the respondent could commit to 13 weeks of employment at full hours and full pay. At the same time she offered to give the respondent company one weeks notice for each year worked “from the date of this letter” as notice to terminate her contract of employment. She stated that if “you would like my notice period to be changed please also advise this change on your written response”. The second named respondent issued a written response dated 29 September 2010 indicating that they accepted her resignation and acknowledge “Younger Homes Ltd owes you a gross payment of £1,505”. The second named respondent indicated the conflict in the different contractual documentation re notice period and chose to rely on the period as specified in her offer of employment – namely one month – which they understood to mean “that your various entitlements are not due to be paid to you before 27^th October 2010 at the earliest”.

6. The claimant submitted her claim to the Office of Industrial Tribunals and Fair Employment Tribunal on 3 November 2010. In the claim form the claimant disclosed that she had claimed job seekers for a period while on “lay off” and having tendered notice. The claimant indicated she had found alternative employment as of the 18 October 2010.

7. The respondent’s response referred to the letter received from the claimant dated 20 September 2010 and stating redundancy pay was owed to the claimant.

The Relevant Law and Decision

8. The tribunal considered the provisions of Article 170 (1) (b) of the Employment Rights (Northern Ireland) Order 1996 (hereafter referred to as the 1996 Order) which states that an employer “shall pay a redundancy payment to any employee of his if the employee is eligible for a redundancy payment by reason of being laid off or kept on short time”. Employers do not have an automatic right to lay off employees without pay. Their right depends on contractual provisions which can be incorporated into the contract of employment in a number of ways. It can be expressly written, included in a collective agreement, implied as a term through custom and practice or agreed by both parties to the contract.

9. There are certain conditions laid out in Part XII of the 1996 Order which the claimant must satisfy to protect her entitlement to a redundancy payment. The relevant provisions in respect of this claimant are found in Articles 182 – 185, 190, 198 and 199 of the 1996 Order. Article 183 to 185 inclusive sets out qualifying conditions that must be satisfied to protect that eligibility to redundancy payment. Article 185 of the 1996 Order provides “An employee is not entitled to a redundancy payment by reason of being laid off unless he terminates his contract of employment by giving such period of notice as is required for the purposes of this Article before the end of the relevant period”. The relevant period is defined in Article 185 (3) - in effect before the expiration of four weeks from service of the notice of intention to claim. The period of notice required in the circumstances where the employee is required by his contract of employment to give more than one weeks notice to terminate the contract is “the minimum period which he is required to give and otherwise one week”.

10. The date of termination is governed by Article 129 (1) (b) of the Employment Rights (Northern Ireland) Order 1996 and is the date the “termination takes effect”.

11. Article 197 of the 1996 Order sets out how the amount of the redundancy payment shall be calculated.

Applying the Law to Facts Found

12. The tribunal is satisfied in light of the evidence of earlier lay off periods in 2009, which did not result in the claimant treating same as a breach of her contract, that in the circumstances of this case there is an implied provision in the contract of the claimant permitting the second named respondent to “lay off” this employee without pay. The claimant established that she is eligible for a redundancy payment by reason of “lay off” as provided for by Article 183 of the 1996 Order. The period of lay off commenced for this claimant on 28 June 2010 and the claimant had received notice that it would continue for 4 weeks taking it to the 26 July 2010. Then the claimant was given notice of an extension of the “lay off” for two weeks, and by letter dated 9 August notice was given of a further extension for six weeks due to end 20 September 2010. During the period of “lay off” the claimant received less than half a weeks pay. By the claimant giving notice on the 20 September 2010, she gave notice on the date the last period of lay off ended thereby satisfying the conditions of Article 183 (1) and (2) (a) of the 1996 Order. No counter notice was served by the second named respondent.

13. The claimant must give notice of resignation as required by Article 185 of the 1996 Order before “the end of the relevant period” – see Article 185 (1) of the 1996 Order. The “relevant period” where an employer does not give a counter notice is within four weeks of notice of intention to claim. In this case the claimant gave notice of resignation at the same time as the notice of intention to claim. The period of notice to be given in this case was the minimum period she was required to give, within the terms of her contract of employment which in this case was one month. While clause 12 of the claimant’s contract of employment made it clear that the notice required was one week for each year of service, it appears the employer was content to accept that requirement was superseded by the terms within her specific offer of employment. While case law supports the proposition that the legislative requirements must be followed strictly – there is authority the tribunal can “resolve the issue as to resignation by taking into account “the particular circumstances which applied in that context” – Buffrey, Auker–Howlett and Baldwin v Manpower PLC [2003] UKEAT 0443/02/0804. In this case the claimant gave notice of resignation at the same time as the notice of intention to claim. Even though the notice of resignation was given at the same time as the notice of intention to claim it appears to the tribunal that does not undermine the claimant’s legal entitlement as such notice of resignation has still been given “before the end of the relevant period”. The tribunal takes the view that this notice of resignation is still “within four weeks of notice of intention to claim”. In all the circumstances of this case including the second named respondent confirming their acceptance of the claimant’s resignation with one month’s notice, the tribunal determined that the date of effective termination for the claimant’s employment was 20 October 2010.

Award

14. The tribunal considered Articles 17 to 20 and Articles 197 of the Employment Rights (Northern Ireland) Order 1996. There was no break in the claimant’s continuity of employment. The claimant had six complete years of service, commencing when she was aged 20 years. This would have entitled the claimant to one week’s gross pay for each of the year’s service she was aged over 21 and half a week’s salary for the years under or at the age of 21. Accordingly she was entitled to a redundancy payment, subject to the relevant statutory maximum weekly wage which is £380.00, representing five weeks gross pay which was £301.00 gross amounting to £1,505.00.

15. The tribunal orders that the first named respondent be dismissed from these proceedings as he was not the employer of the claimant at any time during the claimant’s employment in particular at the relevant date of termination of that employment.

16. The Employment Protection (Recoupment of Job Seeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 do not apply to this decision.

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

Chairman:

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

Date decision recorded in the register and issued to the parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> O' Kane v Michael Young Younger Homes Ltd [2011] NIIT 02632_10IT (10 June 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/02632_10IT.html Cite as: [2011] NIIT 2632_10IT, [2011] NIIT 02632_10IT

Industrial Tribunals Northern Ireland Decisions