Calder v Northern Ireland ME Associatio... Department for Employment and ... [2014] NIIT 186

THE INDUSTRIAL TRIBUNALS

CASE REF: 186/14

CLAIMANT: Joan Calder

RESPONDENTS: 1. Northern Ireland ME Association

2. Department for Employment and Learning

DECISION (APPEALS)

(A) Pursuant to Article 205 of the Employment Rights (Northern Ireland) Order 1996 (“ERO”), I determine that the Northern Ireland ME Association (“the employer”) is liable to the claimant in respect of a redundancy payment. The precise amount of that redundancy payment will be agreed between the claimant and the respondent Department (“the Department”). In default of such agreement, it will be necessary to hold a further hearing, a remedies hearing, in relation to this redundancy pay appeal.

(B) The claimant has withdrawn her appeals under Article 233 of ERO (in respect of wages, holiday pay and notice pay). Accordingly, those appeals are dismissed.

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge Buggy

Appearances:

The claimant was self-represented.

The Department was represented by Mr Kevin Rogan.

REASONS

1. In these proceedings, the claimant makes two separate sets of claims. First, she makes claims against the Northern Ireland ME Association (“the Association”), in its role as her former employer. Secondly, in effect, she appeals against decisions which the Department made in response to applications which the claimant made to the Department (in its role as the statutory guarantor in respect of certain employment debts).

2. The Association has, in effect, ceased to exist. There would be no funds available, in respect of which enforcement of any tribunal award could be achieved, in the event of such an award being made against the Association. Accordingly, no useful purpose would be served by progressing the claims against the Association, even if it were practicable to do so.

3. Accordingly, this Decision relates only to the claimant’s appeals against the Department’s decisions.

4. The claimant was employed by the Association for several years, until September 2012. During that month, the Association, in effect, ceased to operate.

5. The Association was an unincorporated body. Therefore, while the Association had been in operation, the claimant had, in effect, been employed by the members of the committee of the Association.

6. The Association ceased to operate without making any plans, arrangements or provision in respect of payments which due to the claimant in respect of wages, holiday pay, notice pay or redundancy pay. Before it ceased to operate, the Association made no arrangements whatsoever in relation to the receipt or processing of any applications, notices or requests which the claimant might make to the Association in respect of the outstanding debts owed by the Association to her.

7. By abdicating its responsibilities in relation to the matters mentioned in the last preceding paragraph, the Association was, in effect, leaving it to the respondent Department’s Redundancy Payment Service (“RPS”) to act on its behalf, whether the Department liked it or not, in relation to any payments which would be made to the claimant, from State funds, in relation to the debts which the Association owed her as an employer, and indeed also in respect of any applications or notifications which the claimant might consider it to be appropriate or necessary to make in connection with the debts which were still owed to her by the Association.

8. In passing, I note the following:

(1) An individual or body (“X”) can appoint another individual or body (“Y”) as its agent.

(2) That appointment may be made either expressly or by implication.

(3) That appointment cannot be made without the agreement of Y, but any such agreement can be provided retrospectively.

9. The Department, in its role as statutory guarantor, has no power to make payments to the claimant in respect of wages, holiday pay or notice pay. The claimant understands this. That is why she has withdrawn her appeal in relation to those matters.

10. The Department does however have power to make a payment to the claimant in respect of redundancy pay if the Association is still liable to make a redundancy payment to the claimant, and if she has made reasonable effort to recover that payment from the Association. (See Article 201 of the Employment Rights (Northern Ireland) Order 1996, which is referred to in this Decision as “ERO”).

The issues

11. The Department accepts that it has the power to make a payment to the claimant in respect of redundancy, pursuant to Article 201 of ERO, and that it ought to do so, if (but only if) the claimant has taken one of the steps listed at Article 199 of ERO.

12. Accordingly, the issues came down to this: had the claimant taken one of the steps specified in paragraph (1) or paragraph (2) of Article 199? If she had, then the claimant was clearly entitled to a payment in respect of redundancy pursuant to Article 201. If she had not, then, very unfortunately, she would now have no entitlement to a payment under Article 201.

13. It was agreed between the parties that the claimant had not taken any of the steps which are specified at paragraph (2) of Article 199.

14. It is also agreed between the parties that none of the steps specified in sub-paragraphs (a), (c) or (d) had been taken within the period which was specified in that paragraph (a period of six months beginning with the date of the relevant dismissal).

15. Accordingly, the sole issue, which had to be determined for the purpose of deciding whether or not the Department had the power and the duty to make a payment to the claimant under Article 201, was whether, in the words of a sub-paragraph (b):

“the employee [had] made a claim for the payment by notice in writing given to the employer”.

16. Article 199 has to be read in conjunction with Article 214 of ERO. Paragraph (2) of Article 214 provides that any notice which, under the redundancy payments legislation, is required or authorised to be given to an employer may be given to a person authorised by the employer to act on his behalf. Furthermore, paragraph (5) of Article 199 emphasises that nothing in paragraph (1) or (2) of that Article “... affects the capacity of an employer to act by a servant or agent for the purposes of any provision of [the redundancy payments legislation] (including either of those paragraphs)”.

The outcome

17. Mr Rogan has conceded that, in the very unusual and particular circumstances of this case, it is proper to treat the Department as having been the Association’s agent, as soon as the Association ceased operations, and thereafter, for the receipts of any notices provided by an employee pursuant to Article 199(1)(b).

18. In October 2012, the claimant applied in writing to the RPS for a payment in respect of redundancy. Pursuant to the concession specified in the last preceding paragraph, I accordingly hold that the claimant had indeed complied with the provisions of Article 199 (1)(b), in that she made a written claim for a redundancy payment, by writing to the RPS, at a time when (according to the concession made by Mr Rogan) that Service was the Association’s agent for the purpose of receiving such claims.

19. In my view, the concession made by Mr Rogan was entirely appropriate, for two reasons. First, it takes full account of the factual and legal context, as set out at paragraphs 6-8 above. Secondly, the concession is in line with the purposes of Article 199.

Purposes

20. The redundancy payments legislation is social protection legislation and, accordingly, its provisions must be construed purposively.

21. What is the purpose of Article 199 of ERO? Is it to wrong-foot claimants like Ms Calder? Not at all. Is it to make sure that people who would otherwise have an entitlement to redundancy payment lose that entitlement, because of an innocent failure to comply with technicalities, even if those technicalities served no useful purpose within the circumstances of the particular case? Certainly not.

22. Why not? Because Article 199 is, in effect, a time-limit provision, and the aim of all such provisions is to serve one, or several, of the following purposes:

(1) To make sure that respondents or paymasters are protected against claims being made after a long period, during which they may have lost the evidence available to them to rebut the claims;

(2) Claimants should be encouraged “not to go to sleep on their rights” but, instead, to initiate their claims without unreasonable delay.

(3) Respondents, and anyone who will have to pay out pursuant to any relevant award, should be in a position to know that, after a given time, something which might have led to a claim is “finally closed”.

In this general connection, see the discussion of the policy of the law on periods of limitation, in the specific context of personal injuries cases, as set out at paragraph 28-001 in “Chitty on Contracts”, 31^st Edition.

23. Let’s look at those three aims in the present context, but focusing upon the benefits of time-limit provisions for the Department, as the paymaster. (Any effects upon the Association are largely irrelevant, because the Association will not be making any payment pursuant to this Decision).

24. First, the claimant notified the Department very speedily about the potential for a claim in relation to redundancy. Furthermore, in the circumstances of this case, the Department has never had any real doubt that, in September 2012, the claimant was entitled to a redundancy payment from the Association. Secondly, through her October 2012 correspondence with the Department, the claimant had made it clear that she was keen to assert her rights in respect of redundancy pay. Thirdly, as a result of the claimant’s ongoing dialogue with the Department, over the extensive period which began in October 2012, the Department cannot have been under any illusion that the claimant regarded her redundancy payment claim as being “closed”.

25. If the claimant had directly made a claim for payment in writing to the Association, at the last known address of the Association, she would undoubtedly have satisfied the requirements of Article 199. However, in those circumstances, any such written notification would have served no useful purpose.

26. In most areas of law, limitation periods bar the remedy but not the right. There is case law, which I need not cite, which correctly concludes that a failure to comply with one of the steps listed in paragraph (1) or paragraph (2) of Article 199 (or its GB equivalent) has the effect of extinguishing entitlement to a redundancy payment, as distinct from merely preventing somebody from enforcing any such entitlement.

27. Accordingly, the provisions as set out in Article 199 are legally distinguishable from mainstream limitation periods.

28. Nevertheless, in light of the wording, legislative context, and history of Article 199, I am convinced that it was designed to achieve the same purposes as limitation periods are designed to achieve. (See paragraph 22 above).

29. Limitation periods can be waived by the respondent. (See paragraph 28-107 of the edition of Chitty which has already been referred to above.)

30. In some of the English case law, there has been some suggestion that the requirements of the Great Britain equivalent of Article 199 are “jurisdictional”. However:

(1) Those comments have to be considered within the specific contexts in which they were made. In light of those contexts, I am not convinced that any of those comments implies that, in considering the effect, in any particular case, of the Great Britain equivalent of Article 199, a tribunal cannot act in accordance with some concession made, in its capacity as a respondent, by the relevant statutory guarantor institution.

(2) Even if I am wrong about that, I note that none of the relevant case law is binding upon me; I decline to follow it in the relevant respect.

31. Article 145(2) of ERO provides that an industrial tribunal “... shall not consider a [unfair dismissal] complaint ...” unless the complaint was presented within the relevant primary or secondary limitation period. Article 76 of the Sex Discrimination (Northern Ireland) Order 1976 provides that a tribunal “... shall not consider a complaint [of sex discrimination] ...” unless that complaint is presented to the tribunal within the relevant primary or secondary time-limit. (Incidentally, the time-limit provisions of Article 76 of the 1976 order are typical of the time-limit provisions which apply in relation to each of the other main employment discrimination enactments).

32. So, the tenor of Article 145 of ERO and of Article 76 of the Sex Discrimination Order is that a tribunal has no power to “consider” a complaint, even if the respondent would be content for the tribunal to do so.

33. But contrast that with the wording of Article 199. Article 199 does not state that a tribunal lacks the power to consider a redundancy payment complaint if one of the steps envisaged in paragraph (1) or (2) of that Article has not been taken. Instead, Article 199 simply states that, in those circumstances, an employee “... does not have any right to a redundancy payment ...”

34. Accordingly, the contrast is between:

(1) the time-limit provisions of the unfair dismissal legislation and of the sex discrimination legislation on the one hand (which enjoin a tribunal to refrain from considering such cases, if the relevant time-limits have not been complied with) and

(2) the time-limit provisions in respect of redundancy payment (which do not affect a tribunal’s powers to consider a redundancy pay claim, but which, instead, merely specify that a claimant’s entitlement is to be lost, in the event of the redundancy pay time-limit provisions not having been complied with).

35. Article 199 is practically identical to the provisions of section 164 of the Employment Rights Act 1996 (“ERA”), which applies in Great Britain. In light of the similarity between those two sets of provisions, and in light of the legislative history, it is clear that the purposes, meaning and scope of the Article 199 provisions are identical to the purposes, and scope and meaning of the Section 164 provisions.

36. Accordingly, the focus of attention shifts to section 164:

(1) What is the intended purpose of the provisions of that section?

(2) What is the meaning of the section 164 provisions?

(3) What is the scope of those provisions?

37. In order to answer the questions posed in the last preceding paragraph, we need to know how section 164 came to be worded in the way that it currently is worded.

38. Section 164 provides as follows:

“164 (1) E+W An employee does not have any right to a redundancy payment unless, before the end of the period of six months beginning with the relevant date -

(a) the payment has been agreed and paid,

(b) the employee has made a claim for the payment by notice in writing given to the employer,

(c) a question as to the employee’s right to, or the amount of, the payment has been referred to an employment tribunal, or

(d) a complaint relating to his dismissal has been presented by the employee under section 111.

(2) An employee is not deprived of his right to a redundancy payment by subsection (1) if, during the period of six months immediately following the period mentioned in that subsection, the employee -

(a) makes a claim for the payment by notice in writing given to the employer,

(b) refers to an employment tribunal a question as to his right to, or the amount of, the payment, or

(a) presents a complaint relating to his dismissal under section 111,

and it appears to the tribunal to be just and equitable that the employee should receive a redundancy payment.

(3) In determining under subsection (2) whether it is just and equitable that an employee should receive a redundancy payment an employment tribunal shall have regard to -

(a) the reason shown by the employee for his failure to take any such step as is referred to in subsection (2) within the period mentioned in subsection (1), and

(b) all the other relevant circumstances.”

39. When redundancy payments legislation was first introduced, in the Redundancy Payments Act of 1965, section 21 of that Act contained provisions equivalent to the provisions of subsection (1) of section 164, but without any paragraph (d). (Legislation relating to unfair dismissal was not brought in until the 1970s, of course).

40. Section 21 of the 1965 Act provided as follows:

“Notwithstanding anything in the preceding provisions of this Part of this Act, an employee shall not be entitled to a redundancy payment unless, before the end of the period of six months beginning with the relevant date,-[the relevant date is the date when the dismissal notice took effect] (a) the payment has been agreed and paid, or (b) the employee has made a claim for the payment by notice in writing given to the employer, or (c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to a tribunal in accordance with regulations made under Part III of this Act.”

41. Provisions equivalent to the provisions of sub-paragraph (d) of subsection (1) of section 164, and provisions equivalent to those of subsection (2) of that section, were originally introduced in paragraph 9 of Part I of Schedule 16 of the Employment Protection Act 1975.

42. In light of that legislative history, it seems to me that the position is probably as set out in the following paragraphs.

43. When the Redundancy Payments Act of 1965 was introduced, there was a system whereby the State, through the rebates system as well as through the statutory guarantee system, paid a very large percentage of the funding for redundancy payments. No doubt, that circumstance was an important reason why section 21 of the 1965 Act, as originally introduced, provided for the extinguishment of an entitlement to redundancy pay (and therefore for the extinguishment of any entitlements on the part of an employer to a rebate, and for the extinguishment of any entitlements to invoke the statutory guarantee) unless, within a single, and non-extendable, six-month period, one of only three things had happened:

(1) agreement and payment of the redundancy payment or

(2) a written claim for such a payment had been made to the employer by the employee or

(3) industrial tribunal proceedings, involving an issue as to entitlement to redundancy payment, had been initiated

44. It seems to me that that initial list of preconditions as to entitlement was designed to ensure that, within a short period after the relevant dismissal, a written record of any alleged entitlement to redundancy pay would be created (through the making of a payment, through the making of a written demand, or through the commencement of tribunal proceedings). That view, as to the purpose of the relevant preconditions, is reinforced by the fact that, in 1975, when a fourth item was added to the list of section 21 preconditions (the item relating to the commencement of unfair dismissal proceedings), that fourth item also envisaged the creation, very soon after the alleged termination of employment, of a written record of the alleged circumstances of that termination, in the form of an industrial tribunal unfair dismissal claim form.

Employment Judge:

Date and place of hearing: 13 June 2014, Belfast.

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Calder v Northern Ireland ME Associatio... Department for Employment and ... [2014] NIIT 186_14IT (10 July 2014) URL: http://www.bailii.org/nie/cases/NIIT/2014/186_14IT.html Cite as: [2014] NIIT 186_14IT

Industrial Tribunals Northern Ireland Decisions