THE INDUSTRIAL TRIBUNALS

CASE REF:    8809/18

CLAIMANT:	Eddie Davidson

RESPONDENT:	Advanced Care (NI) Limited

	

DECISION

The decision of the tribunal is that the claimant is entitled to an award of £605.36 in respect of notice pay.

Constitution of Tribunal:

Employment Judge (sitting alone):	Employment Judge Wimpress

Appearances:

The claimant represented himself.

The respondent was represented by Mr Niall Smyth, Director of the respondent company.

SOURCES OF EVIDENCE

1.	The tribunal received witness statements and heard oral evidence from the claimant, Mr Niall Smyth, Miss Mandy Gardiner and Mr James Smyth.  The tribunal also received a separate bundle of documents from each party.

THE CLAIM AND THE RESPONSE

2.	The claimant brought claims for failure to provide particulars of employment and breach of contract/unlawful deduction from wages in relation to notice pay and mileage payments.  The claim form also included an unspecified claim for sick pay.  The claim form also stated that the claimant was told that he would be paid his mileage at the end of the year and that the claimant estimated that he was owed around 6,500 miles mileage at 45p per mile.  The respondent in its response asserted that the claimant was provided with a contract of employment which was signed by him and disputed that the claimant was entitled to any payment in respect of mileage.  In relation to notice the respondent at section 5.6 of its response stated as follows: 

“He never gave us his notice.  And we never gave him notice.  We mutually agreed that for the ‘time being’ it was better if he took time out.”

THE ISSUES		

3.	Whether the claimant was dismissed and whether the claims brought by the claimant in respect of failure to provide particulars of employment, breach of contract, unlawful deduction of wages have been made out.

THE FACTS

4.	The claimant was employed by the respondent as a Care Worker, a job which involved travelling from house to house and providing support to clients.  This would normally involve between ten and twenty short journeys per day typically only a couple of miles but on some occasions up to five miles according to the claimant’s partial records.  According to the claim form the claimant’s employment commenced on 26 June 2017 but it is clear from the respondent’s evidence and not disputed by the claimant that he in fact commenced working for the respondent on or about 28 August 2017.  The claimant’s employment subsequently ended on 10 April 2018.  The claimant worked on the basis of a zero hour contract and the rates of pay were £8.05 per hour from Monday to Friday and £8.30 per hour at weekends.  This resulted in an average weekly take home pay of £302.68.  The respondent agreed that that the claimant’s earnings were correct in its response form.

5.	In preparation for the commencement of his employment with the respondent the claimant underwent induction during the week commencing 21 August 2017.  In her evidence to the tribunal Miss Gardiner who was in charge of induction explained what the induction process involved.  According to Miss Gardiner she advised the claimant as to the respondent’s policies and procedures.  The claimant asked about mileage and Miss Gardiner explained that there was no separate payment for mileage but that he could recoup the cost of his petrol against his tax code at the end of the year and that a member of staff, Vivienne Hookes, helped staff with this process.  Miss Gardiner further explained that mileage would only be paid in exceptional circumstances and only if approved by a Care Manager.  In such cases the monies would be paid by the relevant Trust.  Mr James Smyth, an office administrator and former care worker, gave similar evidence as to the respondent’s practice in respect of travel and advised staff to keep records of petrol receipts and mileage.  Mr Niall Smyth provided an example of circumstances in which mileage would be paid namely where a care manager or social worker asked the respondent to take a service user to a special event such as a family get together or a football match that was some distance away.  In such cases a mileage rate would be agreed in advance and would typically only occur once or twice a year.  The claimant gave evidence that he was told by a member of staff, Mary McDonnell, that he could claim mileage.  It is clear however from Miss Gardiner’s evidence that such matters were not within the remit of Ms McDonnell who was the respondent’s Operations Manager at that time.  The claimant did not recall any mention of Ms Hookes during his induction.

6.	During induction the claimant was also provided with a Statement of Main Terms of Employment which he signed as having received on 22 August 2017.  This document made no reference to mileage but made specific contractual provision for notice in accordance with which an employee with more than one month’s employment but less than two years’ employment was entitled to two weeks’ notice on termination by the employer.  

7.	The claimant did not enjoy good health during his employment and suffered a collapsed lung.  The respondent also had a number of issues with the claimant which included him regularly being late for work, sleeping in, not providing information about his illness and not living at the address provided to the respondent at the outset of his employment.  During his period of employment the claimant also by agreement worked in an agency capacity for a similar organisation, Positive Futures, at a unit in Belfast which supported people with learning difficulties.  This arrangement was terminated in February 2018 as a result of the finding of an Investigation Report that the claimant had fallen asleep while providing waking night cover.  It is not necessary for this tribunal to make findings on any of these matters as it is not dealing with a claim of unfair dismissal.  

8.	It is clear however that the respondent was unhappy with the claimant and this came to a head during a telephone call made to the claimant by the respondent’s Managing Director, Mr Niall Smyth, on 10 April 2018.  At this time the claimant was recovering from a collapsed lung.  According to the claimant Mr Smyth enquired as to how he was and the claimant replied that he was still in pain but slowly improving.  Mr Smyth asked when the claimant would be fit for work and the claimant replied that he wasn’t sure and was awaiting an x-ray on 12 April after which he would be able to update Mr Smyth with his progress.  Mr Smyth responded – “What it is Eddie, we can no longer keep you on and will have to let you go effective immediately.”  The claimant questioned Mr Smyth’s reasoning and asked if it was due to his present sick period.  Mr Smyth replied – “No, not just work, you have also shown up late to work in Newtownards” and went on to refer to the claimant sleeping during a shift in Positive Futures.  Mr Smyth continued demanding a response stating – “unless you can convince me otherwise.”  The claimant responded – “How can I convince you otherwise, when I am at home recovering from a collapsed lung? I didn’t ask for this it just happened to me.”  Mr Smyth replied by affirming that he couldn’t keep the claimant on and would have his P45 in the office for the claimant to collect the same day.  Mr Smyth did not agree with the claimant’s account of the conversation.  He contended that they mutually agreed that the claimant should for the time being take time out as he was unfit to continue his current duties.  Mr Smyth agreed that he mentioned the complaint made against the claimant at Positive Futures and that the claimant had referred to his collapsed lung.  Mr Smyth pointed out that the claimant did not work at Newtownards; that he, Mr Smyth, did not speak in the way attributed to him and that he was not in a position to provide the claimant with a P45 that day as he was in Derry.  The respondent subsequently issued a P45 to the claimant which gave his date of leaving as 8 April 2018.  There was no suggestion that the claimant was summarily dismissed or that he resigned.  At its height the respondent’s case was that the parting of the ways was mutually agreed.

THE LAW

9.	Unauthorised Deduction from Wages

	Article 45(1) of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides as follows:

	"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 as follows:

	"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".

10.	Breach of Contract

	The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 confers jurisdiction on industrial tribunals to hear claims for breach of contract and Article 3(c) provides as follows:-

	"Proceedings may be brought before an industrial tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for sum due in respect of personal injuries) if – …

(c)	the claim arises or is outstanding on the termination of the employee's employment."

11.	Notice Pay

Article 118 of the 1996 Order makes provision in relation to notice periods as follows:-

“118.—	(1)	The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more— 

(a)	is not less than one week's notice if his period of continuous employment is less than two years,

(b)	is not less than one week's notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years, and

(c)	is not less than twelve weeks' notice if his period of continuous employment is twelve years or more. 

(2)	The notice required to be given by an employee who has been continuously employed for one month or more to terminate his contract of employment is not less than one week.

(3)	Any provision for shorter notice in any contract of   employment with a person who has been continuously employed for one month or more has effect subject to paragraphs (1) and (2); but this Article does not prevent either party from waiving his right to notice on any occasion or from accepting a payment in lieu of notice.

(4) 	Any contract of employment of a person who has been continuously employed for three months or more which is a contract for a term certain of one month or less shall have effect as if it were for an indefinite period; and, accordingly, paragraphs (1) and (2) apply to the contract.

…

(6)	This Article does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party.

12.	Employment Particulars

Part III of the 1996 Order governs the requirement for employers to provide a statement of employment particulars to employees.  Article 133 sets out what must be contained in an initial statement of employment particulars.

SUBMISSIONS

13.	Both parties made brief oral submissions to the tribunal.

CONCLUSIONS

14.	(1)	Was the claimant dismissed?

	Before turning to the individual heads of claim it is necessary to determine whether or not the claimant’s employment was terminated.  In his witness statement the claimant alleged that he had been unfairly dismissed.  He did not seek to make this contention in his claim form and in any event it would not have been feasible as he had insufficient service and therefore did not qualify to make a claim of this nature.  As a result this issue was not addressed directly in the response.  It is relevant however to the notice pay issue as both under the 1996 Order and the claimant’s contract the requirement to give notice flows from termination.  The respondent contended that the claimant and respondent (in the form of Mr Niall Smyth) had mutually agreed that the claimant’s employment should come to an end and therefore notice pay was not payable.  It seems to me that whatever Mr Smyth’s intentions were this is not a tenable account in law of what occurred.  All of the evidence points to Mr Smyth having decided to bring the claimant’s employment to an end.  Underlying this were health issues, performance issues and potential disciplinary issues arising from the Positive Futures investigation.  Even if the claimant in some way assented or acquiesced in the decision making the message conveyed by Mr Smyth on 10 April 2018 clearly amounted to a dismissal or termination of employment.  

	(2)	Notice Pay
 
Following on from the termination of employment the claimant ought to have been paid notice pay.  On the basis of the claimant’s length of service he has a statutory right to one week’s notice pay and a contractual right to two weeks’ notice pay.  I can see no good reason why he should not enjoy full contractual notice pay.  I am fortified in this view by Mr Smyth’s acceptance that the respondent would have been open to discussing any outstanding entitlement such as notice pay had the claimant raised it with him. 

(3)	Mileage Pay

The claim in respect of mileage falls to be considered as either a breach of contract or an unauthorised deduction from wages.  On either basis the key issue for the tribunal to consider is whether there is any entitlement to a payment of this nature.  Having carefully considered the evidence I am entirely satisfied that the claimant enjoyed no such entitlement and that at induction it was explained that monies could be recouped via HMRC.  The claimant’s contract made no provision for making payments of this nature and I accept Miss Gardiner’s evidence that she explained the correct position in relation to travel costs to the claimant during induction.  In addition, it is clear from the evidence of all of the respondent’s witnesses that there was no history or practice of paying mileage allowance save in exceptional circumstances.  In his claim form the claimant makes reference to being told that he would be paid his mileage at the end of the year and this is more consistent with submitting a self-assessment for tax purposes rather than payment by his employer.  It remains open to the claimant to take this up with HMRC and Mr Niall Smyth helpfully indicated that he would assist the claimant with this.  I am therefore satisfied that the claimant is not entitled to any payment in respect of mileage allowance.

(4)	Failure to Provide Particulars of Employment

	The claimant did not seek to dispute that he signed for the receipt of a Statement of Main Terms of Employment on 22 August 2017.  The claimant also placed reliance on the terms that it contained in relation to notice pay in respect of that aspect of his claim.  There is no suggestion that the particulars of employment provided to the claimant did not comply with the requirements of Part III of the 1996 Order.  The claimant’s complaint in respect of the non-provision of employment particulars therefore falls away. 

	(5)	Sick Pay
	
	The alleged failure to pay sick pay or insufficient sick pay did not feature in the evidence presented to the tribunal save for allegations that the claimant failed to submit sick lines on time or at all which the claimant disputed.  Accordingly, I am satisfied that this aspect of the claim is not made out.

15.	I am therefore satisfied that the claimant was dismissed and is entitled to two weeks’ notice pay in accordance with his contract of employment.

AWARD

16.	Notice Pay (£302.68 x 2 weeks)	£605.36

	Total	£605.36

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

Employment Judge:

Date and place of hearing:       5 December 2018, Belfast.

Date decision recorded in register and issued to parties: