Stephen Short v. Avenir Technical Services Ltd - (12 Mar 2018)

Where proportion of leave taken by worker is less than proportion of leave year which has expired, his employer shall make him a payment in lieu of leave

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The claimant obtained employment with the respondent through Apple Recruitment Services. The claimant brought claims for notice pay, holiday pay and arrears of pay following the termination of his employment with the respondent. He claimed £5,000 in respect of notice pay, £100 for holiday pay and £2,500 arrears of pay. Whether the claims brought by the claimant which fall under the headings of breach of contract and unlawful deduction of wages have been made out. The claimant's employment was terminated in person by the Respondent's Managing Director, Seth Russell, on 5th October, 2017 with one week's notice. Mr Russell stated that, he wasn't happy with the claimant. Mr Russell told the claimant that he would be paid on 6th October, 2017. No payment was received.

Article 45(1) of the Employment Rights (Northern Ireland) Order, 1996 ("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 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 that, "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."

The Working Time Regulations (Northern Ireland) 2016 ("the 2016 Regulations") provide under Regulations 15 and 16 for a worker to have minimum leave in a year of 5.6 weeks. Under Regulation 17 of the 2016 Regulations where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3) therein which sets out a formula to be used in the absence of provision in a relevant agreement.

The claimant's claims of breach of contract and unlawful deduction of wages in respect of non-payment of wages are made out. The claimant is therefore entitled to payment in respect of the whole of September and the five days that he worked in October. The award is calculated as net pay rather than gross pay. The claimant is also entitled to an award in respect of notice pay. In the absence of any representation by the Respondent to the contrary, present Tribunal is satisfied that the claimant is entitled to £500 in notice pay.

In relation to holiday pay the claimant is potentially entitled to a payment in lieu of leave in accordance with Regulation 17 of the 2016 Regulations. The decision of the tribunal is that the claimant is entitled to an award of £2,690.59 in respect of unauthorised deduction of wages/breach of contract, notice pay and holiday pay.

Tags : NOTICE PAY ARREARS GRANT