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Industrial Tribunals Northern Ireland Decisions
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Cite as:  NIIT 01863_18IT,  NIIT 1863_18IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 1863/18
CLAIMANT: Raymond Ian Lendrum
RESPONDENTS: 1. Northern Excavators Ltd
2. Clifford Lilburn
3. Denis Currie
4. Andrew Lilburn t/a Lilburn Contracts
DECISION ON A PRE HEARING REVIEW
1. The claimant’s application to amend his claims to include reference to Regulation 4 of the Working Time Regulations (Northern Ireland) 2016 is misconceived, and it is therefore refused.
2. The claimant’s application to amend his claim against Northern Excavators is not out of time and is therefore granted.
3. The claimant’s application to amend his claims against the remaining respondents to include reference to the provisions of Regulation 20 of the Working Time Regulations (Northern Ireland) 2016 was lodged out of time, but I am satisfied that it was not reasonably practicable for him to lodge it in time. I further am satisfied that it then was lodged within a reasonable time, and permission is granted for his claims to be amended to include reference to Regulation 20.
CONSTITUTION OF TRIBUNAL:
Employment Judge (sitting alone): Employment Judge Browne
The claimant was represented by Ms E McIlveen, Barrister-at-Law, instructed by Edwards & Co Solicitors.
Northern Excavators Ltd was represented by Mr C Hamill, Barrister-at-Law, instructed by Conn & Fenton, Solicitors.
The remaining respondents were represented by Mr M Corkey, Barrister-at-Law, instructed by Markel Law LLP.
1. The tribunal was required to consider whether or not to grant the claimant’s applications to amend his claims to include reference to Regulations 4 and 20 of the Working Time Regulations (Northern Ireland) 2016 (“the Regulations”).
2. It was accepted on behalf of the claimant that the inclusion of an application regarding Regulation 4 was misconceived, as it does not apply to the circumstances of this case. That application is therefore dismissed.
3. The claimant accepts that, on the face of it, his application to include a claim under the Regulations is out of time, but that it was not reasonably practicable for him to lodge it within three months of the matter complained of.
4. A new redundancy claim complaint is to be lodged with the tribunal by the claimant, relating to redundancy payments made in December 2018 to other employees. It was conceded by Northern Excavators that it could not be confirmed whether or not the claimant was employed by it at that time. He had never resigned from it, nor had he been dismissed.
5. The situation is further complicated by the proposition, now advanced by Northern Excavators, that the claimant might not in fact have been employed by either it or the other set of respondents (“the Partnership”), since the unusual facts of this case might lead a tribunal to conclude that, by working simultaneously for both, he in fact had no contract of employment with either. This, on Northern Excavators’ case, was due to the fact that both sets of respondents are indistinguishable from each other, due to being owned and managed by the same individuals.
4. Northern Excavators and the Partnership are separately represented, and no such concession was made on behalf of the latter, although it was not specifically refuted. If any dispute as to identity is pursued, it might readily be anticipated that the this will give rise to the bizarre prospect of two sets of respondents being at odds with each other, despite the fact that they involve the same people.
5. The issues now crystallising give a completely different shape to the entire case from that envisaged when the initial complaints were lodged.
6. In the event that a finding is made that the respondents are legally indistinguishable from each other, a realistic prospect arises that Northern Excavators’ concession as to the possibility that the claimant was still employed by it in December 2018 might then reasonably be expected to extend to a continuing employment relationship with the Partnership, despite the claimant’s purported resignation from it in February 2018.
7. This factually unusual case will require consideration by the tribunal dealing with it of potential breaches by both sets of respondents of employment legislation, compounded by alleged serious malpractice in and around the running of their business affairs.
8. It is common case that the law around a central issue in this case, namely rates of remuneration relating to holiday pay, is in a state of flux as a result of the decision in Agnew, and its pending appeal. That decision was not available when the claimant lodged his original complaints, albeit that they related to the same area of law. It also is of note that the Partnership accepts for the purposes of claim reference 5242/18IT that there is a valid claim for holiday pay, disputing only the amount owed, yet refutes such a claim for the purposes of claim reference 5640/18IT. Any calculation of the amount owed might reasonably include reference to the rate properly payable, which method of calculation will depend upon the outcome of the appeal in Agnew.
9. It was advanced on the claimant’s behalf that it was not reasonably practicable for him to lodge his complaint in time, due in part to a change in legal advisers. No detail was provided as to in what way the advice given by his first firm of solicitors was deficient.
10. The decision in Agnew, whilst potentially of persuasive value, is not binding upon the tribunal which will determine this case, although that situation will apply when the appeal process is concluded, which might include reference to the Supreme Court.
11. It was asserted on the claimant’s behalf that the respondent in Agnew had conceded that the claimants in that case could simultaneously avail of the Regulations and the provisions of the Employment Rights (Northern Ireland) Order 1996. The decision by that respondent to make such a concession is no more than of persuasive value to the tribunal in this case, and might in any event be overruled on appeal.
12. It is my view however that the amendment sought in this case can properly be allowed.
13. The provision by the Agnew case of a potentially viable alternative to the complaint already lodged by the claimant, regardless of it potentially being overruled on appeal, could not in my view reasonably have been anticipated even by a highly experienced legal adviser, let alone the claimant.
14. I therefore conclude that the later emergence of such a decision, which has the potential to be confirmed on appeal, might properly be viewed as an acceptable practical impediment to the lodging of a complaint.
15. It is unclear whether the claimant’s second set of legal advisers independently reached the conclusion that a second piece of legislation regarding holiday pay ought to be included, or if it was in response to the recent Agnew decision.
16. Whatever the source of its inspiration, the respondents were promptly notified of the intention to apply for amendment of the original claims. I therefore conclude that the fresh application was made within a reasonable time after the expiry of the time limit, and the application should be granted.
17. I further conclude that there is a compelling case to be made that the claimant in any event was within time to bring his new complaint.
18. The recent concession by Northern Excavators as to the possibility of an employment relationship between it and the claimant until December 2018, combines with its assertion that it and the Partnership at the material time were legally indistinguishable.
19. Such a position potentially leaves it open to the tribunal hearing this case to hold both sets of respondents liable for the actions of the other.
20. As such, it is my view that the claimant potentially has a live claim against both sets of respondents. He notified both sets of respondents of his intention to seek permission to amend his original claims under the Regulations before December 2018; he consequently is within time to lodge it.
Date and place of hearing: 15 February 2019, Belfast.
Date decision recorded in register and issued to parties: