Havern v Kilmore Hotels Limited Kilmore Hotels Limited [2013] NIIT 1488

THE INDUSTRIAL TRIBUNALS

CASE REF: 1488/13

1825/13

CLAIMANT: James Havern

RESPONDENT: Kilmore Hotels Limited

DECISION

The unanimous decision of the tribunal is that the claimant was an employee of the respondent and the tribunal awards the sum of £3,100.80 in respect of his claim.

Constitution of Tribunal:

Chairman: Mrs A Wilson

Members: Ms E May

Mr B Schofield

Appearances:

The claimant was represented by Mr McKeown, Barrister-at-Law, instructed by Fitzsimons Mallon, Solicitors.

The respondent was represented by Mr D Graham, a Director of the respondent company.

THE ISSUES

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

(i) Was the claimant an employee of the respondent within the meaning of Article 3 of the Employment Rights (Northern Ireland) Order 1996 (the 1996 Order)?

(ii) If the claimant was an employee and it is established that he did not receive a statement of employment particulars in accordance with the 1996 Order what award is due to the claimant in accordance with Article 27 of the Employment (Northern Ireland) Order 2003.

(iii) Did the claimant suffer an unlawful deduction from his wages in accordance with Part IV of the 1996 Order?

(iv) Is the claimant entitled to any holiday pay in accordance with the Working Time Regulations (Northern Ireland) 1998?

(v) Is the respondent entitled to the sum of £560.00 as counterclaimed by him in respect of accommodation costs allegedly due by the claimant?

THE EVIDENCE

2. The tribunal considered the claim form, the response and documents handed in by the claimant. The tribunal heard, evaluated and considered the sworn testimony of the claimant and of Mr Graham. The tribunal heard and considered the submissions of Mr McKeown. Mr Graham did not make submissions. He relied upon the evidence as adduced by him to establish his defense and prove his counterclaim.

3. As a first step the tribunal considered the claimant's case that he was an employee of the respondents. It is the respondent’s case that the claimant was self employed and provided his services as and when required by the respondent.

THE LAW APPLICABLE TO EMPLOYEE STATUS

4. The 1996 Order at Article 3 provides:-

3.— (1) In this Order “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2) In this Order “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

5. The tribunal considered the applicable case law and in particular the case of Ready Mix Concrete (South East) Ltd v Minister for Pensions and National Insurance [1968] 2 QB 497:-

“A contract of service exists if these three conditions are fulfilled.

(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.

(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master.

(iii) The other provisions of the contract are consistent with its being a contract of service. …”

6. It is clear from the case law that in determining the question of employee status in this case the tribunal must examine the terms of the agreement between the parties and the detail of the day to day working relationship.

BACKGROUND

The tribunal makes the following finding of facts:-

7. The claimant whilst working as a trainee chef in a local golf club was approached by Mr Meade the Head Chef of Bannville House and asked to work there.

8. Bannville House is owned by the respondent and Mr Meade was an employee of the respondent. Mr Graham is a director of the respondent company.

9. The claimant started work in Bannville House on 16 March 2012 as a Commis Chef working to Mr Meade. Mr Meade subsequently left the respondent’s employment and he was replaced as head chef by Mr Moorhead. The claimant continued to work in the kitchen under Mr Moorhead. He was promoted to Chef de partie after in or about 3 months into his contract. Some six months prior to the termination of his contract he was promoted to second chef. The tribunal accepts the evidence of the claimant relative to these findings in preference to the evidence of Mr Graham. The claimant is clear and consistent in his evidence and presents as a straightforward witness. Mr Graham’s evidence is for the most part hearsay and those in a position to give first hand evidence have not appeared.

10. The claimant never received a written contract of employment or a written contract for services. He received no paperwork in connection with his contract but had access to a file relative to health and safety matters, first aid records, and fire evacuation procedures and staff qualifications. This file was not produced to the tribunal. It is the claimant’s case that he signed documentation required to be kept on this file in the box marked "signed by the employee". In circumstances where the file has not been produced and the tribunal find the claimant to be a reliable wiriness the tribunal accept this to be the case.

11. The claimant received all payments in cash. He earned £330.00 weekly. He received no pay slips. His pay was routinely given to him by the hotel accountant (Patricia) in a brown envelope with his name on it. Tax was not deducted from his pay. Neither was there a national insurance deduction. There is no evidence to suggest that the claimant ever addressed his mind to the issues of tax and national insurance and the tribunal is satisfied that he was never told that he was responsible personally for these matters.

12. It is the claimant's case that he initially worked between 30 and 35 hours per week and following the departure of Mr Meade that he worked on average 60 hours per week every week. It is the respondent's case that the claimant never worked 60 hours per week and that there were periods during which he was not working.

13. The tribunal has not had sight of any records whatsoever relative to the claimant, his contractual arrangements, working hours or hourly rate of pay. In circumstances where the claimant was in a contractual relationship with the respondent for a period of 14 months the tribunal find this surprising. The tribunal is satisfied that even if the originals of any such documentation were not in the possession of the respondent (as is Mr Graham’s case), it would have been entirely possible to obtain copies.

14. It is the claimant's case that Mrs Graham was the person in charge of the hotel and the day to day running of the hotel. The tribunal did not hear from Mrs Graham who given her responsible position within the hotel would surely have been in a position to clarify the issues of contention relative to the claimant's status and other matters relative to his daily working arrangements.

15. The tribunal did not hear from Patricia, the hotel accountant who could have clarified the matter of the claimant’s pay and his hours of work.

16. In the above circumstances the tribunal accepts the claimant's evidence relative to pay and working hours in preference to the evidence given by Mr Graham which is for the most part hearsay. On this basis the tribunal accepts the figures as calculated by the claimant in the submitted schedule of loss.

17. The claimant took his instructions from the head chef. Initially this was Mr Meade and later Mr Moorhead. More recently he carried out his all duties under the direction of Mr Moorhead. If the claimant had an appointment to attend he had to make arrangements with Mr Moorhead. If he expected to be late for work he was required to contact Mr Moorhead and if he didn't it is his evidence that he would have expected to be disciplined. In the absence of evidence from Mr Moorhead the tribunal accepts this to be the case.

18. The claimant took one week’s holiday during the period of the working relationship but was not paid. The tribunal recognises that this is not consistent with an employment contract and has taken this into account in its deliberations.

19. The tribunal considered the case law referred to it by Mr McKeown and in particular the case of Ready Mix Concrete (South East) Ltd v Minister for Pensions and National Insurance as cited above.

20. The tribunal having considered the evidence is satisfied that the claimant provided his own work and skill as a chef in return for remuneration. He was subject to the control of Mr Moorhead and this was implicit in their working relationship. Mr Moorhead was in turn an employee of the respondent.

21. Apart from the fact that the claimant took a week’s unpaid holiday his contractual terms and conditions were otherwise consistent with employee status. The tribunal is satisfied that he signed documentation in connection with his contract as an employee. (Paragraph 10 refers), he took instructions (Paragraph 17), he was required to make arrangements with the head chef relative to absences and believed himself vulnerable to disciplinary action if he was late for work (Paragraph 17). The tribunal is satisfied that he was treated in the same manner as other employees. He considered himself an employee of the respondent.

22. In making its findings the tribunal draw inferences from the absence of documentation relative to the claimant to include any contractual documentation, payment records etc coupled with the failure by the respondent to call evidence from Mrs Graham, Mr Moorhead and Patricia the hotel accountant. Mr Graham was informed at a Case Management Discussion that such inferences may be drawn and the tribunal considers it significant that despite this warning documentation was not produced and witnesses were not called.

23. In all of the recited circumstances the tribunal finds that the claimant was an employee of the respondent and was entitled to a statement of employment particulars in accordance with the 1996 Order.

24. The tribunal is satisfied that the claimant did not receive the required written statement and award the claimant the sum of £660.00. This sum is based upon a weekly wage of £330.00 as set out in the Schedule of Loss and is awarded pursuant to Article 27 of the Employment (Northern Ireland) Order 2003.

25. The tribunal considered whether this award should be increased to the higher amount in accordance with Article 27 but has insufficient evidence upon which to base a finding that it would be just and equitable to do so.

26. The tribunal awards the sum of £253.00 in respect of unpaid wages amounting to an unlawful deduction from wages in accordance with the 1996 Order. This sum is agreed.

27. The tribunal award the sum of £2,187.80 in respect of unpaid holiday pay outstanding at the termination of the claimant’s contracted calculated in accordance with the Schedule of Loss. The tribunal accepts that the claimant did not take any holiday during the period of his employment other than one week in respect of which he received no payment and further accepts the calculations as set out in the Schedule of Loss.

COUNTERCLAIM

28. The tribunal dismisses the counterclaim. The evidence of the claimant is accepted to the effect that no contractual arrangement existed whereby he was required to pay for overnight accommodation availed of by him in Bannville House. It is his evidence that he availed of such accommodation on some occasions when he was working a late shift followed by an early shift and that the arrangement was free of charge. It is his evidence that the first mention made to him of payment was in the respondent's response to this claim.

29. It is Mr Graham’s evidence that Mrs Graham was responsible for the arrangement whereby the claimant was allowed to avail of overnight accommodation and that reception staff were responsible for raising invoices for payment relative to this accommodation. In the absence of evidence from Mrs Graham or from reception staff, the tribunal accepts the claimant’s evidence.

30. The counterclaim is dismissed.

Chairman

Date and place of hearing: 29 October 2013, 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 >> Havern v Kilmore Hotels Limited Kilmore Hotels Limited [2013] NIIT 1488_13IT (25 November 2013) URL: http://www.bailii.org/nie/cases/NIIT/2013/1488_13IT.html Cite as: [2013] NIIT 1488_13IT

Industrial Tribunals Northern Ireland Decisions