McGuckin vs MDC Tiles & Bathrooms Limited
| Jurisdiction | Northern Ireland |
| Judgment Date | 14 August 2018 |
| Respondent | MDC Tiles & Bathrooms Limited |
| Docket Number | 01258/16IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REF: 1258/16
CLAIMANT: Lisa McGuckin
RESPONDENT: MDC Tiles & Bathrooms Limited
DECISION
The unanimous decision of the tribunal is that:-
(1) The claimant’s claim for unauthorised deductions of wages in respect of notice pay and/or holiday pay is dismissed following a settlement concluded between the parties, following conciliation by the Labour Relations Agency.
(2) For the avoidance of any doubt, the claimant’s claim for unfair dismissal, pursuant to Article 135 of the Employment Rights (Northern Ireland) Order 1996 (assertion of a statutory right) is dismissed following withdrawal.
(3) The claimant’s claim that she was subjected to detriment, in contravention of Article 70C of the Employment Rights (Northern Ireland) Order 1996 is not well founded and the claimant’s claim pursuant to Article 71 of the said Order is dismissed.
(4) The claimant was not unreasonably refused time off, pursuant to Article 85A of the Employment Rights (Northern Ireland) Order 1996 and the said claim is dismissed.
(5) The claimant was unfairly dismissed by the respondent, pursuant to Article 131 of the Employment Rights (Northern Ireland) Order 1996 and the tribunal makes an award of compensation to be paid by the respondent to the claimant in the sum of £2,066.25.
Constitution of Tribunal:
Employment Judge: Employment Judge Drennan QC
Members: Mr D Walls
Mr E Grant
Appearances:
The claimant was represented by Dr L Lawrence LLB PhD FIFST.
The respondent was represented by Mr B McKee, Barrister-at-Law, instructed by O’Reilly Stewart, Solicitors.
Reasons
1.1 The claimant presented her claim to the tribunal on 29 April 2016, in which she made claims against the respondent of unfair dismissal, detriment under Article 85A of the Employment Rights (Northern Ireland) Order 1996 and unauthorised deduction of wages in respect of notice pay and/or holiday pay. The respondent presented a response denying liability for the said claims on 17 June 2016. Her claims against Michael McNeill the managing director of the respondent were dismissed, by consent, at a Case Management Discussion on 11 October 2016, as, at all material times, the respondent was her employer for the purposes of these proceedings.
1.2 Following discussion between the representatives, the tribunal was informed, at the commencement of the hearing, that the claimant’s claim for unlawful deduction of wages, in respect of notice pay and/or holiday pay, had now been settled between the parties following conciliation action by the Labour Relations Agency and is now dismissed.
1.3 Following further discussion between the representatives, at the commencement of the hearing, the representatives identified, by agreement, the claims, which now required to be determined by the tribunal, on foot of these proceedings, namely:-
(i) a claim for detriment under Article 70(C) (and insofar as relevant and material, Article 71 and 72) of the Employment Rights (Northern Ireland) Order 1996;
(ii) further, and in the alternative, a claim under Article 85A (and Article 85B insofar as relevant and material) of the Employment Rights (Northern Ireland) Order 1996;
(iii) a claim for automatic unfair dismissal under Article 131 of the Employment Rights (Northern Ireland) Order 1996.
In relation to the said claim under Article 131 of the Employment Rights (Northern Ireland) Order 1996, this claim was allowed to be proceeded with by the claimant, following an agreed amendment of the claimant’s claim, which was ordered by the tribunal, on foot of the said agreement. As this amended claim was accepted by the representatives of the respondent to be a ‘re-labelling exercise’ the respondent did not require, by consent, in the circumstances, to formally amend its response, albeit maintaining its said denial of liability for any such claim. It was further agreed that the claimant’s claim, pursuant to Article 135 of the Employment Rights (Northern Ireland) Order 1996 was withdrawn and, for the avoidance of any doubt, this claim is therefore dismissed, upon such withdrawal, by the tribunal.
2. Relevant legislation
2.1 Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’)
(i) Article 70C – Leave for family and domestic reasons:-
(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done for a prescribed reason.
(2) A prescribed reason is one which is prescribed by regulations made by the Department and which relates to —
...
(d) time off under Article 85A.” [Tribunal’s emphasis]
…..
(ii) Regulation under this section may make different provision for different cases or witnesses.
(ii) Article 71 – Complaints to industrial tribunals:-
(1) An employee may present a complaint to an industrial tribunal that he has been subjected to a detriment in contravention of Article ... 70C
...
(2) On a complaint under this Article it is for the employer to show the ground on which any act, or deliberate failure to act, was done.”
(iii) Article 72 – Remedies
(1) Where an industrial tribunal finds a complaint under Article 71 well-founded, the tribunal —
(a) shall make a declaration to that effect, and
(b) may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates.
(2) ... the amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to —
(a) the infringement to which the complaint relates, and
(b) any loss which is attributable to the act, or failure to act, which infringed the complainant's right.
(3) The loss shall be taken to include —
(a) any expenses reasonably incurred by the complainant in consequence of the act, or failure to act, to which the complaint relates, and
(b) loss of any benefit which he might reasonably be expected to have had but for that act or failure to act.
(4) In ascertaining the loss the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of Northern Ireland.
(5) Where the tribunal finds that the act, or failure to act, to which the complaint relates was to any extent caused or contributed to by action of the complainant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.”
(iv) Article 85A – Time off for dependants
“(1) An employee is entitled to be permitted by his employer to take a reasonable amount of time off during the employee's working hours in order to take action which is necessary —
(a) to provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted,
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