Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Background:
The claimant was employed by the respondent as a motor mechanic from October 2021. The claimant stated he signed a contract but never received a copy of it and that he never received any payslips. He was told by the owner that provision would be made for a pension. In November 2022 the claimant asked whether his pension had been sorted out and the owner said he had an appointment with his accountant to sort it out. On the same night, the claimant received a message asking him to do two loads in the morning which was a driving job. The claimant offered to do one stating his job was as a mechanic and that he had left his previous driving job because of heart problems. The claimant then received a message saying that work was being cut to three days per week for two weeks and then no work after that. The next day the claimant received a message telling him not to come to work. The claimant received no further communication and took that as his dismissal.
The claimant did turn up for about a week but with no work and his last day of work was 30th November. The claimant asked about his holiday pay, considering he had not taken any holidays in 2022 as he was saving them up for when his child was born in December. The owner informed the claimant that he was not entitled to any holiday pay.
Outcome:
The respondent did not take part in the proceedings. The Tribunal asked whether the claimant was dismissed and whether it was procedurally unfair. It was found that there was no process whatsoever and that it did not comply with the three-step minimum. As a result, the dismissal was found to be automatically unfair and the award was to be increased by 50% on the basis of not complying with the statutory minimum.
Despite no evidence about the respondent’s policy on holiday pay it was found that the claimant was, as a matter of legislative right, entitled to holiday pay. The total award was £11,249.00.
Practical Guidance for Employers:
Every year a number of cases come to the Tribunal where there is a lack of any procedure when it comes to dismissing an employee. This only leads to a greater bill that has to be paid when there is an uplift given for such a failure. Employers should be ever mindful of the three step minimum procedure and avoid situations as has arisen here.
NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/
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