Anderson vs BC Plant JCB Limited,R Kennedy & Co (NI) Limited,BC Plant Ltd (In
| Jurisdiction | Northern Ireland |
| Judgment Date | 22 October 2019 |
| Respondent | BC Plant JCB Limited,BC Plant Ltd (In,R Kennedy & Co (NI) Limited |
| Docket Number | 08551/17IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REFS: 8552/17IT
8551/17IT
CLAIMANTS: 1. Stewart Anderson
2. Brian Anderson
RESPONDENTS: 1. BC Plant JCB Limited
2. R Kennedy & Co (NI) Limited
3. BC Plant Ltd (In Administration)
DECISION
The unanimous decision of the tribunal is:-
(i) The claimants were employed by the third respondent.
(ii) Their employment transferred to the second respondent under a service provision change.
(iii) The second respondent terminated the claimants’ contracts of employment without notice on 9 October 2017. The first claimant was unfairly dismissed.
(iv) The second respondent is ordered to pay an award of £26,210.17 to the first claimant in respect of unfair dismissal.
(v) The second respondent is ordered to pay an award of £598.88 to the second claimant in respect of notice pay.
(vi) The third respondent is ordered to pay appropriate compensation as follows for breach of regulation 13 of the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006.
To the first claimant £4,493.52.
To the second claimant £3,593.28.
It is declared that the second respondent is jointly and severally liable for these sums ordered to be paid by the third respondent.
Constitution of Tribunal:
Employment Judge: Employment Judge Travers
Members: Mrs D Adams
Mr I Atcheson
Appearances:
The claimants were represented by Neil Phillips, Barrister-at-Law, instructed by Worthingtons, Solicitors.
The first and third respondents were unrepresented.
The second respondent was represented by Barry Mulqueen, Barrister-at-Law, instructed by Miller McCall Wylie, Solicitors.
REASONS
Issues
- The claimants are salesmen who say that they were employed by a company which had a dealer agreement with JCB Sales Limited [‘JCB’] to sell JCB agricultural machinery. When JCB terminated the dealer agreement and subsequently entered a dealer agreement on similar terms with the second respondent, the claimants assert that, insofar as their activities as salesmen were concerned, it was a service provision change which fell within the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006
- In broad terms, the issues which the tribunal has to determine are as follows:-
(a) Was the second claimant employed by the first or the third respondent?
(b) The parties to the Agricultural Dealer Agreement [‘ADA’] which was terminated, are stated to be JCB Sales Limited and the first respondent. The claimants’ case is that it was the third respondent which in fact carried out the obligations under the ADA either as sub-contractor or an implied contract between the third respondent and JCB Sales Limited. In all the circumstances, if the claimants were employed by the third respondent, was their employment capable of being subject to a service provision change when JCB Sales Limited appointed the second respondent as their dealer?
(c) If the answer to (b) above is yes, when the second respondent became the JCB dealer was there a service provision change to which the claimants were subject within the terms of the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006?
(d) If so, are the claimants entitled to any remedy?
(e) Has there been a breach of the duty to inform and consult under the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006?
Sources of evidence and submissions
- At the conclusion of the evidence, the case adjourned for written submissions. The parties’ respective counsel have filed and exchanged lengthy closing submissions and subsequent written comments on each other’s submissions
- The tribunal is grateful to both counsel for their helpful written submissions. It is not proposed to recite the submissions extensively in this decision, but the tribunal has weighed them and taken them fully into account in reaching its conclusions of fact, law, and generally
- The findings of fact set out below have been reached on the balance of probabilities. They have been informed by the oral and written evidence which the tribunal has heard, together with the parties’ written submissions, and by the documents to which the tribunal was referred within the 598 page trial bundle.
- The tribunal heard oral evidence from the following witnesses:-
- Stewart Anderson, the first claimant;
- Brian Anderson, the second claimant;
- Mr Philip Chick, former managing director of the third respondent;
- Mr Jon Nixon, General Manager, Dealer Development JCB; and
- Mr Alex McCloy, managing director of the second respondent
Facts
Commencement of Proceedings and Parties
- By claim forms dated 1 December 2017, the claimants commenced tribunal proceedings against the first and second respondents. By order dated 6 August 2018, the claims were consolidated.
- Their claims sought relief under the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 and/or the Transfer of Undertakings (Protection of Employment) Regulations (Northern Ireland) 2006. The first claimant made a claim for notice pay, unfair dismissal and a redundancy payment. The second claimant made a claim for notice pay but did not have the qualifying service for an unfair dismissal claim.
- The first respondent filed a response dated 5 January 2018, signed by Mr Philip Chick.
- The first respondent denied liability to the claimants and asserted that their employment had been transferred to the second respondent under the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 and/or the Transfer of Undertakings (Protection of Employment) Regulations (Northern Ireland) 2006.
- The second respondent filed a response dated 8 January 2018, signed by its solicitors.
- The second respondent denied liability to the claimants and asserted that neither the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 and or the Transfer of Undertakings (Protection of Employment) Regulations (Northern Ireland) 2006 [‘TUPE’] applied to make the second respondent liable to them.
- At a case management discussion on 6 June 2018 the third respondent was joined to the proceedings. The record of proceedings recorded that:
‘1. The claimants applied to join BC Plant Limited as an additional respondent in this matter. They explained that they had been advised that the first named respondent was merely a shelf company. There was doubt as to which was the correct employer.
2. The second named respondent did not object to the joinder [emphasis added].’
- By replies to notices for additional information dated 14 and 19 December 2018 respectively, each claimant accepted that TUPE did not apply in their case and that the relevant regulations were the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006.
- In the same replies the claimants asserted that they were...
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