THE INDUSTRIAL TRIBUNALS

CASE REF: 16929/18  

CLAIMANT:	Paul Conneely

RESPONDENTS:	(1)   Belfast Heating Service Limited
	(2)   Ronald Lynn

DECISION

The decision of the tribunal is that the claimant's claim against the second-named respondent is dismissed by the tribunal.  The tribunal finds the following of the claimant’s claims against the first-named respondent to be well-founded: (1) unlawful deduction of wages; and (2) failure to provide itemised pay statements.  The tribunal Orders the first-named respondent to pay to the claimant the following amount:-

           Wages unpaid upon termination of employment = £1,072.00
                
           Total: £1,072.00.

CONSTITUTION OF TRIBUNAL:

Employment Judge (sitting alone):	Employment Judge Leonard

APPEARANCES:

The claimant appeared and represented himself.

There was no appearance by or on behalf of the respondent company.

THE ISSUES TO BE DETERMINED AND THE EVIDENCE

1.	The claimant, by claim dated 30 October 2018, claimed against the respondent company and Mr Ronald Lynn in respect of: (1) pay in lieu of notice; (2) breach of contract; (3) unlawful deduction of wages; (4) failure to provide a written statement of terms and conditions of employment; and (5) failure to provide itemised wages slips.  At hearing the respondents named in the proceedings did not appear nor were they represented.  At the outset of the hearing, the tribunal clarified with the claimant the nature and terms of any contract of employment and the identity of any employer.  From the claimant’s evidence, the tribunal determined that the claimant was employed by a limited liability company called “Belfast Heating Service Limited” of which company Mr Ronald Lynn, the second respondent named in this claim, was a director, but that Mr Lynn had not employed the claimant in any personal capacity.  For this reason the claim against the second-named respondent, Mr Ronald Lynn, is dismissed by the tribunal and any reference hereinafter to "the respondent" is a reference to the first-named respondent.

2.	There was no response to this claim.  Having heard the claimant's evidence in this regard, including evidence that the claimant had very recently visited the business premises from which the respondent conducts its business and having observed business being actively conducted from these premises, and also having heard evidence from the claimant which the claimant stated he had obtained from various sources that the respondent remained in active business, the tribunal is satisfied, on balance, firstly, that these proceedings have properly come to the attention of the respondent and, secondly, that the respondent is currently actively engaged in business and has not ceased to trade. 

3.	The tribunal therefore had to proceed to determine these claims and, if any such were determined to be well-founded, the matter of remedy as appropriate.  The tribunal heard oral evidence from the claimant and the claimant also produced some documentation in evidence, including copies of telephone records of communications with the respondent.

FINDINGS OF FACT

4.	In consequence of the oral and documentary evidence, the tribunal made, on the balance of probabilities, the following findings of fact material to the issues:-

4.1 	The respondent is a limited liability company of which Mr Ronald Lynn is a director.  The company conducts business from premises at Unit 5A Sydenham Business Park, 17 Heron Road, Belfast BT3 9LE.  The claimant, who is a plumber of some 30 years’ experience, was contacted by telephone by an employee of the respondent called “Heather”, who is apparently an office administrator, and he was offered a job with the respondent as a plumber.  Initially a pay rate of £24.00 per hour was discussed by telephone and agreed but the claimant accepted in his evidence to the tribunal that when he initially had face-to-face discussions with Mr Lynn on site, a figure of £23.00 per hour was agreed as the applicable hourly wage rate for this job.  On the basis of this express verbal agreement with Mr Lynn, the claimant then proceeded to attend work on a number of sites on behalf of the respondent, with each job on any particular site normally lasting for one day.  His first working day was on 27 August 2018.  The work consisted of plumbing and heating work which was apparently sub-contracted on behalf of the Northern Ireland Housing Executive.  The claimant, at the outset, was never given to understand anything other than that this was permanent and long-term employment with the respondent.  After starting employment, he was verbally advised that he would be paid on a monthly basis at the end of each month.

4.2   	At no time was the claimant ever provided with a written statement of terms and conditions of employment by the respondent, nor with any wages or pay advice records or documents.  Upon conclusion of the employment, he was also not provided with a P45, notwithstanding a number of requests by him.

4.3   	When the claimant did receive this first instalment of wages, he was paid the total sum of £377.00 paid directly into his bank account, but without any further information as to how that figure was calculated.

4.4  	The claimant immediately queried this directly with Mr Lynn and then with Heather in administration, by telephone text.  Heather replied to him by text, stating that his salary was £24,000 a year, which equated to £11.50 and not £23.00 per hour.  The claimant took issue with this as it was at variance with what he had originally agreed with Mr Lynn.

4.5  	The claimant was then informed by a fellow plumber, a second team leader named “Aaron” more senior to him, that there was no work for him and not to report for work the following working day, which would have been 11 September 2018.  The claimant clearly took from this information that he was being summarily dismissed by the respondent company, without notice.  Thereafter he did not receive any further wages or pay slips, nor did he receive any P45.  The claimant then made numerous attempts to contact the respondent in order to seek the outstanding pay and documentation but he did not receive anything in response.

4.6   	At the date of the employment ceasing, the claimant had worked a total of 63 hours for the respondent and he had been paid the sum of £377.00 in total.  The tribunal notes that throughout the period of employment, from 27 August (being a Monday) to 10 September (again a Monday), there were a total of 15 calendar days, or 11 working days based upon a 5 day week, Monday to Friday.  The tribunal did not need to determine any further material facts for the purposes of this decision.

THE APPLICABLE LAW

5.	The Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”), Article 118, provides that the statutory minimum period of notice required to be given by an employer to terminate the contract of employment of an employee who has more than one month and less than two years’ continuous service is one week.  In the absence of evidence of enhanced contractual terms, this minimum statutory notice is deemed to be incorporated into any contract of employment.  It is a breach of contract on the part of any employer to fail to provide either pay in lieu of notice or due notice upon termination of employment.  A breach of contract claim may be brought under the terms of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.  This enables an employee to recover sums due under a contract of employment which arise or are outstanding upon termination of any employment.  

5.1   Article 45 (1) of the 1996 Order provides that:  "An employer shall not make a deduction from wages of a worker employed by him unless – (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction".  Article 45(3) of the 1996 Order provides that:  "Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion".  The Court of Appeal in England in the case of Delaney –v- Staples (t/a De Montfort Recruitment) [1991] ICR 331, held that there was no valid distinction to be drawn between a deduction from a sum due, and non-payment of that sum, as far as the relevant statutory provision was concerned.  Article 59 of the 1996 Order provides that the definition of “wages”, in relation to a worker, means:  "... any sums payable to the worker in connection with his employment, including - (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise...", subject to certain statutory exceptions which do not apply to the facts of this case. 

5.2  	Articles 33 and 36 of the 1996 Order require an employer to provide an initial statement in writing of employment particulars and also covering any subsequent changes to particulars.  Accordingly, Article 33 (1) provides that where an employee begins employment with an employer, the employer shall give to the employee a written statement of particulars of employment, but Article 33 (2) provides that this shall be given not later than two months after the beginning of the employment.
5.3  	The Employment (Northern Ireland) Order 2003 ("the 2003 Order") at Article 27 provides that where the employer is in breach of the duty to the employee under Article 33(1) or 36(1) of the Employment Rights Order to give a written statement of initial employment particulars or of particulars of change, the tribunal shall make a minimum award of either two weeks’ or, if in all the circumstances it considers it just and equitable to do so, four weeks’, gross pay if there is a breach of the requirement to provide such a written statement of employment particulars by the employer.  This entitlement applies only where the tribunal finds in favour of any claimant in respect of proceedings concerning specific statutory entitlements concerning a claim by an employee under any of the jurisdictions listed in Schedule 4 to the 2003 Order.  Schedule 4 encompasses any claim under Article 55 of the 1996 Order 1996, that being a claim in respect of unauthorised wages deductions. 
 
5.4	Article 40 of the 1996 Order, requires any employer to provide written itemised pay statements to the employee containing the information specified in Article 40 (2).

THE TRIBUNAL’S DECISION

6.	The applicable contract terms in this matter, in the absence of any evidence of a written contract, are those which upon the evidence were orally agreed between the claimant and the respondent.  The tribunal accepts that an initial wage rate of £23.00 per hour was expressly agreed between the claimant and Mr Lynn representing the respondent company and that the claimant proceeded to work on foot of that express oral agreement, notwithstanding a subsequent attempt made by or on behalf of the respondent to resile from this and to contend that the applicable wage was £24,000 per year, equating to £11.50 per hour.  The claimant worked for a total of 63 hours between 27 August and 10 September 2018.  At £23.00 per hour this equates to £1,449.00, of which the claimant was paid £377.00, leaving an outstanding balance of £1,072.00 unpaid.  The claimant had no idea whether or not any normal deductions had been made from any wages received on account of tax and national insurance.  For this reason, the tribunal shall deal only in gross wages figures in respect of this brief period of employment. 

            7.    As mentioned above, Article 118 of the 1996 Order provides that the statutory minimum period of notice required to be given by the employer to terminate the contract of employment of an employee who has more than one month and less than two years’ continuous service is one week.  However, in this case the term of employment was less than one month and therefore the statutory minimum period of notice does not apply.  There is no evidence of any contractual provision superseding this.  Accordingly, the claimant's claim for pay in lieu of notice is not well-founded and this is dismissed by the tribunal, notwithstanding that the tribunal accepts that notice was not given and that the employment was summarily terminated by the respondent.  The tribunal is nonetheless bound by this statutory qualification of more than one month’s service.

8.       Article 40 of the 1996 Order, requires any employer to provide written itemised pay statements to the employee containing the information specified in Article 40 (2). The tribunal determines, under Article 44 (3) of the 1996 Order, that this statutory provision was breached by the respondent and accordingly the claimant’s claim in this respect is sustained.

9.    Articles 33 and 36 of 1996 Order require the provision of written employment particulars.  However, Article 33 (2) provides that these written employment particulars shall be given not later than two months after the beginning of the employment.  In this case, the claimant had not attained two months’ service with the respondent.  Again, the tribunal is bound by this statutory qualification period of two months.  Accordingly, at the time of termination of contract the respondent was not in breach of this latter statutory provision.  For this reason, the tribunal determines that there is no statutory breach and this part of the claimant’s claim is not upheld.

10.	Article 27 of the 2003 Order applies to proceedings before a tribunal relating to the claims set forth in Schedule 4 to the 2003 Order.  This entitlement applies only where the tribunal finds in favour of any claimant in respect of proceedings concerning specific statutory entitlements set forth in Schedule 4.  In this case the relevant claim might otherwise have included a claim for wages deductions under Article 55 of the 1996 Order, as upheld by the tribunal.  However, as that claim has to be connected with a sustained claim under Article 33 of 1996 Order and as the tribunal has not found in favour of the claimant in respect of the Article 33 matter, the tribunal is unable to proceed to make any award under these provisions of Article 27 of the 2003 Order.

11.    The tribunal therefore finds the foregoing part of the claimant’s claims to be well-founded and Orders the respondent to pay to the claimant as follows:-

                	Wages unpaid upon termination of employment = £1,072.00

                	Total: £1,072.00

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

Employment Judge:

Date and place of hearing:	6 March 2019, Belfast.	

Date decision recorded in register and issued to parties: