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McCartney v Aldergrove Developments Ltd & Ors (Sex Discrimination) [2003] NIIT 1784_01 (10 April 2003)

 


McCartney v Aldergrove Developments Ltd & Ors (Sex Discrimination) [2003] NIIT 1784_01 (10 April 2003)

THE INDUSTRIAL TRIBUNALS

CASE REF: 1784/01

APPLICANT: Margaret McCartney

RESPONDENTS:

1. Aldergrove Developments Limited

2. Kenneth Dickson

3. Jack Allen

4. Tirkeeran Limited

DECISION

The unanimous decision of the tribunal is that the applicant was unlawfully discriminated against by the first and fourth-named respondents on the grounds of her sex and is entitled to compensation as set out in the schedule hereto.

Appearances:

The applicant was represented by Miss Bradley instructed by Murphys Solicitors.

The respondents were represented by Mr Crothers of Messrs Brangam, Bagnall & Co, Solicitors.

1. The applicant commenced employment with the first-named respondent on 24 April 2000. The first-named respondent Aldergrove Developments Limited was a company developing an industrial estate in the Aldergrove area developing the site and leasing the units on long or short term lets. The fourth-named respondent Tirkeeran Limited was the management company that managed not only the Aldergrove site but other sites. It would appear that the applicant was employed by Aldergrove Developments Limited but she also worked for Tirkeeran Limited and the two companies were closely linked and appeared to have common shareholders. The award is thus against both first and fourth named respondents. The second-named respondent Mr Dickson was a director of both companies. The third-named respondent was employed by Aldergrove Developments Limited. The second and third-named respondents were therefore either directors or employees of the first and fourth respondents or of both and were acting at all times in that capacity and have no personal responsibility for the applicant's claim. The second and third named respondents are therefore dismissed from the claim as respondents.
2. The applicant had no written job description or written contract but was employed as a telephonist/receptionist at the Aldergrove site. She worked 22½ hours a week on a five day basis 4½ hours each day. Her job was to be a point of contact for people visiting the site, open the post, look after the telephone calls and generally act as receptionist/secretary doing some typing as required.
3. The applicant explained to the Tribunal how her office in the development was moved as various properties became let. As the first respondents let an office unit they would move the applicant and the general office area to another part of the development until that in turn was let and the applicant would be moved on.
4. In November 2000 the applicant became ill. On 28 or 29 November the applicant's husband delivered a sick note to Mr Allen the third-named respondent at the premises of the company. This sick note referred to the applicant suffering from hypertension. At the same time the applicant's husband told the respondents that his wife was pregnant but that she would be back to work as soon as she was better.
5. However, on 7 December the applicant received a letter on the notepaper of the fourth-named respondent Tirkeeran Limited stating that as a large part of the site at Largy Road had now been let it was no longer necessary to have a reception on site and 'it is with reluctance we must write to inform you that as from 11 December 00 we will have no further need of your services and therefore have to make you redundant.'
6. During the applicant's employment, before she became ill, there had been no mention of any downturn in business or the fact that this particular letting would mean that there would be no further need for a receptionist. The letter came as a complete surprise to the applicant.
7. The letter referred to above had mentioned the fact that the applicant's P45 would be forwarded to her. As this document did not arrive the applicant made a number of phone calls to the office to ask for the P45. On passing the premises one day the applicant's husband noticed that a new glass reception area had been built in one of the buildings and a female was on the reception desk. As a result of this the applicant telephoned to the office during the month of March 2001. She was greeted by a receptionist who led her to believe that she was the new receptionist and put the applicant through to Mr Allen. The applicant made a remark such as 'It didn't take you long to get a new receptionist' whereupon Mr Allen laughed at this remark. He gave no further information concerning the new receptionist.
8. The respondents made the case that due to the downturn in work and the fact that a major part of the unit at Aldergrove had been let at the same time as the applicant had gone on sick leave, the decision was made to dispense with the services of the receptionist. This decision was made prior to the respondents hearing that the applicant was pregnant. The respondents showed to the Tribunal a letter dated 27 November 2000 from the first named respondent to Randox Laboratories Limited; i.e. written a day or two before the visit of the applicant's husband to Mr Allen, in which the respondents confirmed a letting of a number of units in the development site at Aldergrove to Randox Laboratories Limited.
9. This substantial letting did, in the view of the respondents, mean that a receptionist was no longer necessary as there would be little passing trade and there was not so much property left to be let. The respondents also explained that the amount of work had run down over the course of a few weeks as enquiries had dried up and visits to the site had also reduced substantially.
10. The reason why a receptionist was in the development when the applicant's husband passed and when the applicant herself telephoned during the month of March, was that a friend of Mr Dickson, the second-named respondent, had asked whether she, as a foreigner endeavouring to improve her English, could work on a short term basis on the site as receptionist to get used to meeting people and talking to people on the telephone. This lady was allowed to run the reception desk for a number of weeks on an unpaid basis, in order to improve her English and get to know local people. However, there was no intention of replacing the applicant as receptionist, this was merely a short term arrangement to facilitate the lady in question.
11. Mr Dickson and Mr Allen both explained to the Tribunal how the lady in question Mrs Holland, had very poor English and indeed on a number of occasions had to put calls directly through to Mr Allen and Mr Dickson as she could not understand what the people on the telephone were saying. This account of Mrs Holland's language skills was not confirmed by the applicant who stated that when she spoke to Mrs Holland, Mrs Holland seemed to be able to carry on a perfectly good conversation with her and explained the terms on which she was operating as receptionist i.e. part-time and doing much the same work as the applicant. She did not however say that she was unpaid.

The Decision of the Tribunal

12. The Decision of the Tribunal is that the first and fourth named respondents did dismiss the applicant, allegedly for redundancy but without any attempt to consult with the applicant concerning this redundancy and without any prior warning of impending redundancy. The letter to the applicant was written after the respondents became aware that the applicant was pregnant.
13. The respondents then took on a part-time receptionist upon similar conditions save for payment of wages as the applicant. The Tribunal feel that it would have been unlikely that the respondents would have risked taking on a completely inept receptionist to answer and operate the telephone as it could have a serious adverse effect on business. The Tribunal prefer the evidence of the applicant that the new telephonist was able to converse satisfactorily on the telephone in English.
14. The Tribunal holds that the respondents would not have dispensed with the services of the applicant as soon as they did had they not found out that she was pregnant. The Tribunal hold that had the applicant not been pregnant she would have been allowed to return to work and would have probably have worked for some number of months before being paid off. Despite the fact that the bulk of the premises at Aldergrove were to be let there was some time lag before the new tenant would go in and a new office had been made available for the respondents which would in the natural course of things have been serviced by a receptionist. Indeed this proved to be true as the respondents employed, in somewhat unusual circumstances, Mrs Holland. The Tribunal therefore hold that the applicant was dismissed because of her pregnancy. Had she not been pregnant the Tribunal consider that she would have become redundant in the natural course of development in the business by 11^th October 2001.

Award

The applicant was on incapacity benefit for some weeks after her dismissal and was not in a position to find work. When she recovered she was on maternity leave after one month of looking for work without success. The Tribunal have calculated her loss of wages up to 11^th October 2001, taking into account her Maternity Benefits.

An award of £500.00 is made for injury to feelings.

Schedule

Dismissed and paid up to 29/12/2000

Incapacity Benefit 7/12/2000 – 5/04/2001

Thus unable to work

5/04/2001 – 14/05/2001 – 5 weeks

lost wages net @ £110.00 550.00

On Maternity Leave from 14/05/2001 – 15/09/2001

First 6 weeks 90% of £110.00 = £99.00

Less 62.20 Maternity Allowance

£36.80 for 6 weeks = 220.80

For next 12 weeks applicant received Maternity Benefit of

£62.20 per week which equates with what she would have

received from the respondents.

Tribunal award one further month's loss of net wages for period

15/09/2001 to 11/10/2001 = 440.00

1210.80

Injury to feelings 500.00

Total £1710.80

======

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 10 April 2003, Belfast

Date decision recorded in register and issued to parties: