The claimants were all employed by the respondent and worked at ‘La Bodega’ bar in Larne.   The respondent company took on, as a TUPE transfer, La Bodega in February 2020.   In March 2020 the bar was closed as a result of the Coronavirus pandemic.   The claimants were assured that they would be ‘furloughed’.   No furlough payments were ever made to the claimants.  After pressure was put on the respondent, they transferred £1,000 to the claimants but stated that the monies would have to be repaid when they received their furlough payments.  They never received those furlough payments. Further payments were made by the respondent again with the caveat that they were to be paid back when furlough was paid.

The bar reopened in September 2020 but had to close again in October 2020 due to further restrictions.   At this point, the respondent’s director informed the Claimants that they would not be paid their wages or holiday pay.  The claimant asked if they had been made redundant or dismissed and they were told ‘no’ to both questions.  The claimants wrote to Mr O’Toole seeking clarity on their employment status in October 2020 and no reply was ever received.   The bar reopened in May 2021, but the claimants were never contacted.   There were no steps made to terminate the claimants’ contracts and no P45 was ever issued.

The first issue was when the claimants were dismissed.  The Tribunal found that the dismissal took place on 25th May 2021 when they were not contacted about work when the bar reopened.   This was based upon the unique circumstances with the Tribunal holding that even though they had not been paid since March 2020, which was a fundamental term of the contract, the claimants did not accept that breach and did not treat the contract as being terminated at that point.  This is obviously an important point when it comes to the time limits in the Industrial Tribunal.   As a result of this and the fact that there had been no procedure in the dismissals the claims were well founded.  A claim for redundancy was also successful considering the evidence that the bar had reopened with a reduced work force.

Considering the inaction from the respondent the remedies were all-encompassing. It included unlawful deduction from wages considering that no wage had been paid since March 2020 until the ‘dismissal’ in May 2021.  It also included redundancy pay, compensatory award, including uplift for failure to follow statutory procedures and holiday pay.   The Tribunal did note that insolvency of the respondent had been mooted at a previous preliminary hearing.   It was sage that the claimants were advised of the possible steps that they could take if that was the case, and they had a difficulty in enforcing the award.

Practical Lessons

The hospitality industry was one of the worst hit through the coronavirus pandemic.  This case demonstrates the extent of the effect of the restrictions through the amount of time that the bar had to be closed.  However, that is not an excuse for the failure of the respondent to take any appropriate steps either on a personal level in keeping employees updated or a legal basis.  As a result, the respondent has been met with a number of orders against as a result of its inaction.  It must be noted that the pandemic will not be accepted as an excuse by the Tribunal for falling below standards required under employment legislation.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/