THE INDUSTRIAL TRIBUNALS

CASE REFS:  00142/08, 00143/08,
00144/08 & 159/08

CLAIMANTS:		Robert Francis Collins
				David Samuel Clarke
				Daniel Lavery
				Gerard Crossan

RESPONDENTS:		1.  Allen Mechanical Services Ltd
				2.  Department for Employment and Learning

DECISION
Each of the claimants suffered a breach of contract in that they were not paid for 15.36 days leave to which they were entitled.  The first respondent is ordered to pay to each of the claimants as follows:-

(1)	To the first claimant £1,127.88.

(2)	To the second claimant £1,004.54.

(3)	To the third claimant £1,127.42.

(4)	To the fourth claimant £1,234.94.

Constitution of Tribunal:
Chairman (Sitting Alone):	Mr B Greene
Appearances:
The claimants appeared in person.
The first respondent was represented by Mr Ian Leonard, of KPMG. 
The second respondent was represented by Mrs Patricia Baird from the Department for Employment and Learning.

SOURCES OF EVIDENCE

 1.	The tribunal heard evidence from the claimants and from Mr Ian Leonard on behalf of the first respondent.  The tribunal also received three bundles of documents amounting to 15 pages.  

THE CLAIM AND DEFENCE

 2.	Each of the claimants claims that he was not paid for holiday leave to which he was entitled.  The first respondent disputes that the claimants are entitled to any payment for untaken holiday leave as it claims they have exhausted their holiday entitlement.  Currently it is negotiating a voluntary arrangement with its creditors but the negotiations have not yet been concluded.  The second respondent is joined to these proceedings lest any payment ordered to be made by the first respondent for untaken holiday leave is not honoured and a claim is presented to the Department for Employment and Learning for a payment.

THE ISSUES

 3.	Whether each claimant suffered a breach of his contract of employment by not being paid for accrued holiday leave.  

FINDINGS OF FACT

 4.	The first claimant is a plumber by occupation.  He worked for the first respondent from 10 September 2001 until 22 October 2007 when he was made redundant.  His net weekly pay was £367.16.

 5.	The second claimant is a plumber’s mate by occupation.  He worked for the first respondent from 6 September 1999 until 22 October 2007 when he was made redundant.  His weekly net pay was £327.

 6.	The third claimant is a plumber by occupation.  He worked for the first respondent from October 2001 until 22 October 2007 when he was made redundant.  His weekly net pay was £367.

 7.	The fourth claimant is a plumber by occupation.  He worked with the first respondent from 18 March 2003 until 22 October 2007 when he was made redundant.  His weekly net pay was £402.

 8.	The holiday arrangements governing the plumbing trade in Northern Ireland were those agreed at the Joint Industrial Board between employers and employees.  Paid holiday leave was secured by employees working a number of weeks for which they were given credits which entitled them to their annual holiday leave in the succeeding year.

 9.	The claimants were entitled to 29 days leave per year.  The leave would only be paid leave if the employee had earned credits by working during the required weeks in the preceding year.

10.	The claims made by the claimants relate to paid leave for the spring leave for the five days of Easter week in 2008, the Christmas and New Year leave in 2007/2008 of 10 days and the autumn leave of 2 days in October 2007.

11.	All the claimants worked during the requisite periods to qualify for the paid holiday leave they currently are seeking.

12.	Although it was alleged that the first respondent had changed the method of qualification for holiday leave from a year in advance to the current year no evidence was adduced on behalf of the first respondent to support that view.  The representative from the first respondent indicated to the tribunal that he had not been able to uncover any evidence which suggested that notification of this change had been given to the claimants.  The claimants all told the tribunal that no such notice had been given to them nor were any of them aware of a change in the administration or organisation of holiday leave.  This evidence was unchallenged.

13.	Each of the claimants informed the tribunal that in relation to the paid holiday leave they had received in the summer of 2007 their payment had been reduced by eight hours i.e. the weekly holiday leave was paid on the basis of working 40 hours instead of 44 hours.  No explanation was advanced to the tribunal as to why this was done or what significance, if any, should be attached to this change.

14.	None of the claimants received payment for the holiday leave in the autumn of 2007, Christmas 2007/2008 and the spring of 2008 although they had worked and earned sufficient credits to qualify for the same.  In relation to the spring 2008 holiday leave the claimants all accepted that they were only entitled to 3.36 days and not 5 days by reason of having earned insufficient credits in the previous year.

15.	It appears that Construction First Ltd holds money on behalf of each of the claimants for the payment to them for holiday leave.  In relation to the first claimant it holds £237.60.  In relation to the second claimant it holds £212.50.  In relation to the third claimant it holds £237.60.  In relation to the fourth claimant it holds £279.13.  

	Mr Leonard, on behalf of the first respondent, undertook to write to Construction First Ltd and inform them that the claimants were no longer employees of the first respondent and inviting the Construction First Ltd to pay to the claimants the monies being held by the Construction First Ltd on their behalf for payment for their holidays.

LAW

16.	(1)	An employee may bring a claim to the Industrial Tribunal for the recovery of any sum that is due or arises on the termination of the employee’s employment (Industrial Tribunals Extension of Jurisdiction Order) (Northern Ireland) 1994 Article 3.  

	(2)	A contract may be varied by consent of the parties.

APPLICATION OF THE LAW AND FINDINGS OF FACT TO THE ISSUES

17.	(1)	It was a term of the employees’ contract of employment that holiday pay would be based on the Joint Industrial Board agreement which required the employees to earn credits by reason of weeks worked in one year which would qualify them for paid holidays in the subsequent year.

	(2)	This system operated throughout the employment of the claimants with the first respondent until the date of dismissal by reason of redundancy.

	(3)	Each of the claimants was not paid for 15.36 days leave for which they had done the requisite work and earned the required credits. 

	(4)	There was no evidence before the tribunal that the system for payment of holiday leave had been changed from a year in advance to the current year, as suggested by the first respondent’s representative.  Accordingly, the only evidence before the tribunal is that the system under which the claimants began working continued right up to the date of their redundancy.

	(5)	Accordingly each of the claimants, by virtue of their contract of employment, is entitled to be paid for 15.36 days leave for which they had worked the requisite weeks and earned the appropriate number of credits.

	(6)	Each of the claimants therefore has suffered a breach of contract and is entitled to compensation as follows:-

(1)	in relation to the first named claimant £1,127.88;

(2)	in relation to the second named claimant £1,004.54;

			(3)	in relation to the third named claimant £1,127.42; and

			(4)	in relation to the fourth named claimant £1,234.94.

(7)	It appears that the Construction First Ltd, the group responsible for the payment of holiday leave to the claimants, holds monies in relation to each of the claimants for payment to them for holidays.  Should that money be paid to them it will go in some way to discharge the liabilities currently owed by the first respondent to the claimants.  

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

Chairman:

Date and place of hearing:	19 August 2008, Belfast.

Date decision recorded in register and issued to parties: