Patterson vs Castlereagh Borough Council
| Jurisdiction | Northern Ireland |
| Judgment Date | 21 November 2014 |
| Docket Number | 01793/13IT |
| Court | Industrial Tribunal (NI) |
| Respondent | Castlereagh Borough Council |
THE INDUSTRIAL TRIBUNALS
CASE REF: 1793/13
CLAIMANT: Robert Patterson
RESPONDENT: Castlereagh Borough Council
DECISION
The unanimous decision of the tribunal is that:-
(1) The tribunal makes a declaration that the respondent made unauthorised deductions from the claimant’s wages in relation to holiday pay contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996 and in the alternative, the tribunal finds the respondent has failed to pay the claimant amounts in respect of holiday pay, to which he is entitled under Regulation 16 of the Working Time Regulations (Northern Ireland) 1998, in relation to casual work carried out by him under his worker’s casual contract with the respondent.
(2) A remedy hearing will be arranged, in due course, to determine, any remedy to which the claimant is entitled on foot of the tribunal’s decision on liability, as set out above.
(3) The tribunal refuses to make a declaration the respondent made unauthorised deductions from the claimant’s wages in relation to holiday pay contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996 and, in the alternative, the tribunal does not find the respondent has failed to pay the claimant amounts in respect of holiday pay, to which he was entitled under Regulation 16 of the Working Time Regulations (Northern Ireland) 1998, as amended, in relation to any overtime work carried out by him under his contract of employment as an assistant plant engineer.
Constitution of Tribunal:
Employment Judge: Employment Judge Drennan QC
Members: Mr R Hanna
Ms D Adams
Appearances:
The claimant was represented by Mr B McKee, Barrister-at-Law, instructed by McCartan Turkington Breen, Solicitors.
The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Worthingtons, Solicitors.
Reasons
1.1 The claimant presented a claim to the tribunal on 9 October 2013. His claim was part of a multiple claim (Wray & Others, Case Reference No: 1793/13 and Others). However, following presentation to the tribunal of a response to the said ‘multiple’ claim by the respondent on 13 November 2013 and Case Management Discussions on 27 February 2014 and 8 April 2014, it was agreed that the claim of the claimant, Robert Patterson, would be the ‘lead’ claimant, for the purposes of this multiple claim; and it would be listed for a substantive hearing before a full tribunal on liability only. Subsequently, the claimant’s claim was amended, following leave granted by the tribunal, on 29 April 2014 and the respondent presented an amended response on 30 April 2014. It will be necessary to set out in some further detail, later in this decision, the circumstances relating to the making of the said amendment and the terms thereof.
1.2 As shall become apparent later in this decision, the central facts which were necessary for the tribunal to find in order to determine the claimant’s claim, on liability, were largely agreed and/or were not in dispute between the parties. However there was considerable dispute between the parties on the proper interpretation of the relevant law, in light of the facts so found by the tribunal.
1.3 The claimant’s claim is a claim for unauthorised deductions from wages contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996 and/or breach of the Working Time Regulations (Northern Ireland) 1998. It will be necessary to set out the precise nature of the dispute in more detail elsewhere in this decision; but, in essence, it relates to whether the respondent has calculated properly the sums properly payable by the respondent to the claimant in respect of paid annual leave for ‘casual work’ carried out by the claimant for the respondent as a worker, under a worker’s contract, and, further and in the alternative, following the said amendment of the claim, for overtime as an employee, on foot of a contract of employment, as an assistant plant engineer (see later).
1.4 At the Case Management Discussion on 8 April 2014, as set out in the Record of Proceedings dated 9 April 2014, the following list of issues were agreed by the representatives, namely:-
“Legal Issues :
(1) What are the claimant’s entitlements to annual leave under:-
(a) his contract of employment;
(b) the Working Time Regulations (Northern Ireland) (‘WTR');
(c) the Employment Rights (Northern Ireland) Order 1996 (as amended) (‘ERO’); and
(d) the Working Time Directive
(2) Whether the claimant has:-
(a) a single contract with the respondent as an Assistant Plant Engineer and casual worker, and if so what are his normal working hours; or
(b) two contracts with the respondent: one as an assistant plant engineer and one as a casual relief worker; and if so what are his normal working hours in respect of each contract.
(3) What remedy, if any, has the claimant under his contract(s), the WTR or the ERO?
(4) Has the claimant suffered an unlawful deduction from his wages contrary to Part IV of the ERO?
(5) What time-limits apply to the relevant remedy? If the application is out of time can/should it be extended?
(6) If he is found to have been entitled to same, is the claimant entitled to seek financial compensation or other relief which was not taken?
Factual Issues :
(1) What are the terms of the casual contract?
(2) What is the length of the claimant’s normal working week:-
(a) as an assistant plant engineer; and
(b) as an casual relief worker.
(3) What is the claimant’s contractual entitlement to annual leave under:-
(a) his full-time contract of employment; and
(b) his casual contract?
(4) Has the claimant taken all leave to which he has been entitled under those contracts?
(5) Has the respondent refused to permit the claimant to take leave to which he was entitled?
(6) Has the claimant requested leave from the respondent during the relevant period?
(7) Did the respondent inform the claimant that it was its policy not to pay annual leave in respect of casual work for employees who also had full-time jobs.
(8) Has the respondent refused to pay the claimant for leave which he has taken.
(9) Has the claimant suffered any financial loss?”
(When these issues were agreed, the claimant’s claim had not been amended, which, as set out previously, occurred during the course of the substantive hearing – see later.)
1.5 The tribunal heard oral evidence from the claimant. The respondent did not call any evidence. In addition, the representatives provided oral and written submissions to the tribunal, supplemented by various agreed documents contained in the ‘trial bundle’. As set out later in this decision, following the conclusion of the hearing, the representatives provided further written submissions to the tribunal. All submissions have been considered by the tribunal before reaching its decision, even if not specifically referred to.
1.6 The tribunal became aware, during the course of the hearing of this matter, that there were a number of first instance decisions by Employment Judges in Great Britain, which had potential relevance to the issues in this matter, and that these decisions had gone on appeal to the Employment Appeal Tribunal. The representatives did not wish the hearing of this matter to be postponed, pending the outcome of those appeals, which it was anticipated were due to be heard at the end of July 2014 by the Employment Appeal Tribunal....
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