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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Quigley v Paul McGrory T/A Cafe Ole [2010] NIIT 01251_08IT (04 August 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/01251_08IT.html Cite as: [2010] NIIT 01251_08IT, [2010] NIIT 1251_8IT |
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 1251/08
1506/08
6265/09
7235/09
CLAIMANT: Elizabeth Quigley
RESPONDENT: Paul McGrory T/A Cafe Ole
DECISION
The unanimous decision of the Tribunal is that the respondent unfairly dismissed the claimant and discriminated against her on the grounds of her sex. The Tribunal also makes a declaration that the respondent failed to provide the claimant with a contract of employment or a written statement. Accordingly the Tribunal orders the respondent to pay to the claimant the following:-
£546.00 outstanding Holiday Pay;
£420.00 for failure to give the claimant a contract of employment or statement of employment particulars;
£750.00 Basic Award;
£27,283.88 compensation for Unfair Dismissal;
£17,500.00 compensation for injury to feelings for discrimination on the grounds of sex;
A total sum of £46,499.88.
Constitution of Tribunal:
Chairman: Ms P Sheils
Panel Members: Ms N Wright
Mr D Walls
Appearances:
The claimant appeared and was represented by Miceal Canavan, solicitor, instructed by McGuinness & Canavan, Solicitors.
The respondent did not appear and was not represented.
The Claim and the Response
1. The claimant lodged four claim forms. The first two of these, 1251/08 and 1506/08, alleged that the respondent had failed to give the claimant a contract of employment, an itemised pay statement, to pay her Statutory Maternity Pay (SMP) or to deal with her grievance.
2. The claimant went on to state that she had been discriminated against on the grounds of her sex by the respondent’s failure to pay her maternity pay and also claimed unfair (constructive) dismissal.
3. The claimant lodged two further claim forms namely 6265/09, 7235/09 alleging that the respondent had victimised her in relation to her first claims and in his contacting Her Majesty’s Customs and Excise.
4. Two default judgements were issued in respect of the first claims but the respondent entered a late response dated 10 March 2009 after the revocation of the default judgements. His response to claim 1251/08 stated that he would be resisting the claimant’s claims and that he looked forward to defending the case.
5. The respondent entered a
response to the claimant’s third claim, 6265/09, on
9 September 2009 which made no reference to the allegation of victimisation.
6. The respondent did not enter a response to the fourth claim, 7235/09.
Sources of Evidence
7. Witnesses
The Tribunal heard from the claimant, Ms Teresa Campbell, Ms Rionagh Quigley and from Dr Joanne Hynes.
Documents
The Tribunal was furnished with a bundle of documents prepared by the claimant’s solicitor, including a medical report prepared by Dr Joanne Hynes.
The Hearing
8. As the respondent had failed to attend the hearing or to be represented at it the Tribunal had first to consider whether it could hear this matter. In this regard the Tribunal directed itself to The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, rule 27.
The Tribunal considered the Office file and noted that the respondent had been sent a Notice of Hearing on the 30 December 2009. There was nothing on the file to indicate that this notice had not been delivered or that it had been returned. Further the Tribunal noted an exchange of e-mails between the respondent and the claimant’s solicitor, Miceal Canavan. These related to Mr Canavan’s forwarding of the psychiatric report to the respondent in March 2009 at which date the respondent was well aware of the case.
9. In addition the Tribunal heard submissions from Mr Canavan who stated that the claimant had identified the respondent’s home address, that Mr Canavan had subsequently written to the respondent at that address advising the respondent that he could collect copies of the hearing bundle and medical report from Mr Canavan’s office but that the respondent had neither replied to the letter or called at Mr Canavan’s office.
10. Having considered all the information in its possession, including submissions from Mr Canavan, the Tribunal decided to dispose of the case in the absence of the respondent. In reaching this decision the Tribunal took into account the many and various steps both Mr Canavan and the claimant took to contact the respondent and the respondent’s failure to respond to any of these, to the fact that the Notice of Hearing had been served and that there was no indication that it had been returned or was otherwise undelivered.
The Facts
11. The Tribunal found the following fact proven on the balance of probabilities.
12. The respondent owned two coffee shops in Derry, one in the Quayside Shopping Centre, Cafe Ground and the other in the Richmond Shopping Centre, Cafe Ole. The claimant began working in Cafe Ole in 2005 and was initially employed as a counter assistant.
13. When the claimant started her employment she initially worked between 40 and 45 hours per week. The claimant was not given any contract of employment or other terms and conditions of employment nor was she, during her employment with the respondent, ever given an itemised pay statement.
14. The claimant was first promoted in November
2006 as Manageress of Cafe Ole in the Richmond Shopping Centre. Shortly after
this promotion the claimant was promoted again to Manageress of both cafes. The
claimant’s wages increased to £8.50 gross per hour. Before her pregnancy the
claimant received approximately between £240.00 and £280.00 per week.
15. The claimant worked five days per week, Monday, Wednesday, Thursday, Friday and Saturday. Her hours of work varied between a start time of 8.45 am and 9.30 am and finished roughly at 5.00 pm. Her duties included the preparation of the staff rotas, recruiting new staff members, paying staff from the till and completing the cash book. This book was a hard backed note book where the claimant recorded till takings, expenses and suppliers bills and wages paid out and arrangements for staff holidays.
16. During her pregnancy the claimant reduced her working hours to 30 hours per week and received approximately £210.00 nett.
17. At the time the claimant was employed there was one other full-time staff member, Ms Teresa Campbell, who worked 30 hours. Otherwise all staff members were either on shorter contracts or worked part-time of between 12 and up to 20 hours. The claimant stated that although staff wages were paid out of cash from the till she understood that the respondent was paying staff national insurance contributions, including her own.
18. The Tribunal noted that in both responses presented by the respondent he denied that the claimant had ever been a manageress. However having heard the uncontested evidence from the claimant, and the evidence of Ms Campbell and Ms Rionagh Quigley, particularly in respect to claimant’s hours of work and the duties she carried out, the Tribunal found that the claimant had been employed by the respondent as manageress and on a full time basis.
19. Throughout her period of employment the claimant was entitled to four weeks holiday inclusive of statutory holidays. She indicated that in 2008 she had taken Saint Patrick’s Day, Easter Monday, 2 May Bank Holiday and an additional day, a total of four days. The claimant stated that she was owed £546.00 holiday pay.
20. In November 2007 the claimant discovered that she was pregnant. In December 2007 the claimant told the respondent of her pregnancy. The respondent’s reaction was that he was pleased and happy for the claimant and he wished her all the best.
21. In or about March 2008 the claimant met with the respondent in the Coffee Shop in the Richmond Centre to discuss with him the payment of her Statutory Maternity Pay. The claimant advised the respondent that she was not sure how this worked and the respondent assured her that, as her employer, he would be paying it.
22. Additionally, on one occasion during her pregnancy the claimant had a discussion with the respondent where he suggested that if she could cut down on the staff rota and curtailed some of the expenses that he might be able to pay her more money during her maternity leave.
23. In May 2008 a mid-wife told the claimant that she needed to give an MAT B1 form to the respondent. The claimant was advised by the mid-wife that the respondent needed to complete this form that would enable him to be paid money from which he would pay the claimant her Statutory Maternity Pay. The claimant stated that the respondent refused to take this MAT B1 form off her and told the claimant to hold on to it for him.
24. The claimant’s baby was born on 27 July 2008. The claimant continued to work right up until the day before the baby’s birth, the 26 July 2008; her waters broke while she was working in the café on that day. The claimant stated that she had done this as a favour to the respondent as he was on holiday during that period and he had asked the claimant to cover for him as she was the only person capable of paying suppliers and banking the money.
25. The claimant next saw the respondent a week after the baby’s birth, in early August 2008, when he called to her house. The purpose of his visit was to have the claimant complete some paper work and to see the baby.
26. The next contact the claimant had with her employer was to send him a text to invite him to call up to visit her to sort out her Maternity Pay. The claimant received no reply to this text and so she sent the same text some two days later. The respondent telephoned the claimant and advised her that he was on his way to visit his accountant there and then and that he would contact her half an hour later.
27. The respondent did ring the claimant back half an hour later and told the claimant that his accountant had advised him that the claimant was not entitled to Statutory Maternity Pay as she was only earning £80.00 per week. When the claimant reminded the respondent that she had in fact been earning between £220.00 and £280.00 per week the respondent acknowledged this to be true but advised the claimant that he had only been putting her “through the books” for three hours five days per week.
28. At this point the claimant got very upset and she disconnected the call. She rang the respondent back some fifteen minutes later, in some distress, asking him what she was going to do without Statutory Maternity Pay. The claimant stated that the respondent advised her to go to the Social Security Agency and explain that she only worked three hours per day for five days and that she was in receipt of only £80.00 per week. The respondent advised the claimant that if she did this Social Security Agency would sort out the claimant’s benefits. The respondent went on to add that he would see the claimant right until the Social Security Agency money came through.
29. After this phone call the claimant was very upset. She had no money and did not know what she was going to do to get money. The claimant’s lived in private rented accommodation and, in the end, had to use her savings and accept support from her mother during this period.
30. The respondent contacted the claimant again in or about 10 August 2008 and asked the claimant if she had gone to the Social Security Agency yet. The claimant advised the respondent that she had not contacted the Social Security Agency as she was not prepared to tell lies to obtain benefits. The respondent went on to add that if the claimant could continue to work for him doing the rota and other errands he would pay the claimant an additional £100.00 a week on top of her benefits. The claimant advised the respondent that she was not prepared to do this.
31. The respondent again contacted the claimant some days later. He asked the claimant if she would conduct some interviews with him as he was trying to fill her position while she was off on maternity leave. The respondent offered to take the claimant out for lunch in return for this favour. The claimant refused the respondent’s offer.
32. Subsequently the claimant confided in her aunt her difficulties and with her guidance the claimant contacted Galliagh Integrated Advice Centre. The Advice Centre contacted the respondent and he continued to refuse to sign the claimant’s MAT B1 form. The Social Security Agency then contacted the claimant and she advised them of her earnings and that the respondent refused to sign her MAT B1 form. The Agency advised the claimant that she would have to report the matter to the Tax Office which she did; however the respondent had already told the Tax Office that the claimant only earned £80.00 per week and the Tax Office refused to accept the claimant’s version of events, saying that it was her word against the respondent’s.
33. The claimant stated that during this period of time she was very upset and distressed by the respondent’s treatment of her. She stated that she had had no inkling from him during the year that there would be any difficulty with her Statutory Maternity Pay so that to find herself in the position where she was effectively penniless and dependant on her family was a source of shock, annoyance as well as distress and upset. The claimant also stated that during this period of time when the respondent was still in contact her and urging her to claim benefits and even requesting her to do favours for him that she was confused by this treatment in that it was difficult to reconcile his friendly approach with what subsequently became clear his obdurate refusal to facilitate the payment of her Statutory Maternity Pay.
34. The claimant stated that this confusion was born out of the fact that she believed she had had a good working relationship with the respondent and that his refusal properly to help her in these circumstances was a shock and indeed a betrayal. The claimant also stated that her distressed feelings at this time were compounded by the fact that she was unable to enjoy this initial period with her baby but was instead spending her time worrying about trying to get her Statutory Maternity Pay and finding the money on which to live.
35. The claimant’s solicitor Miceal Canavan wrote to the respondent on 10 September 2008 setting out the basis of the claimant’s claims against the respondent and asking the respondent to treat the letter as the instigation of a grievance against him.
36. The respondent did not reply to this or any other correspondence from the claimant’s solicitor. However, in reply to subsequent correspondence from the Office of the Industrial Tribunals and the Fair Employment Tribunal, the respondent sent an email to that Office dated 14 February 2009 and made a number of allegations against the claimant. These included an allegation that she was not trustworthy, that during her employment with him and after she became pregnant the claimant had constantly asked the respondent for money; that the claimant’s partner was not providing her with any money; that PSNI had raided her home on several occasions; that she was in some difficulties and that on one occasion she had asked the respondent for three pay slips indicating that she earned £300.00 as she wanted to acquire a loan from a bank; that he had been visited by two men from Sinn Fein asking him about the claimant’s rights and why he was not paying her; that the claimant had told different people different levels of salary earned by her and that on one occasion when he and the claimant had met at McDonald’s the claimant had stared at him and laughed.
37. The email ended with the words “I look forward to attending court and telling it as it is, while I will have to pay for my legal bills I’m quite sure Ms Quigley will have hers covered by some SCAM”.
38. The claimant denied that she had constantly asked the respondent for money; that her partner had stopped paying her any money; that she had ever told the respondent that PSNI had raided her home, nor did they ever raid her home. The claimant denied that she had ever asked the respondent to falsify any pay slips in order to facilitate a loan. She denied sending any men to visit the respondent nor did she ever ask any Sinn Fein members or representatives to do so on her behalf. The claimant also denied having told different people different versions of her wages. In regards to the incident in Mc Donald’s the claimant accepted that she did see the respondent there on one occasion but that she did not stare at him nor laugh at him as suggested.
39. The respondent presented a late response to the claim, dated 20 February 2009, and in it the respondent repeated some of the allegations contained in his email and included some other allegations against her. The respondent denied that the claimant had ever been a manageress and stated that the claimant had only worked for him at lunchtimes for a period of three hours, five days a week. The respondent also made a comment that he had noticed the claimant’s family were always eating in the café at lunchtime. Although the respondent did not specifically state that he was alleging that the family was not paying for their food the comment was included in such a way that that inference should be drawn.
40. The claimant was asked specifically about each of the allegations made against her in the response by the respondent. The claimant categorically denied the allegations against her and the statements made about her in that response, including the comment that her family were always eating in the café at lunchtime, for free or otherwise.
41. The Tribunal noted that in his response the respondent indicated that he would be resisting the claim and that he looked forward to defending the claim.
42. The Tribunal accepted the claimant’s version of the events as stated by her. The allegations and statements made by the respondent were at such odds with the evidence of the claimant that, in the absence of any further evidence or proof from the respondent, and, in view of the claimant’s demeanour and the straightforward delivery of her evidence, the Tribunal had no hesitation in accepting the claimant’s version of events.
43. The claimant stated that the respondent’s comments in relation to her costs being paid for her by some kind of “scam” particularly distressed and angered her. This was because the claimant stated that in her working life she had always been in employment, had never defrauded Social Security or anyone else and had specifically refused to conspire with the respondent in his attempts to do so.
44. The claimant also stated that she was distressed by the position the respondent’s treatment put her in, that is to say, not having money or a job. When she became pregnant the claimant had told the respondent that she would be keen to return to work after a short maternity leave but that the respondent’s treatment of her had now left her unfit to work for some time.
45. The Tribunal heard from Dr Joanne Hayes, Consultant Psychiatrist, and accepted her report dated 5 February 2010. Dr Hayes diagnosed the claimant as having sustained an Adjustment Disorder, a state of subjective distress and emotional disturbance which usually (and in this case did) interfere with social functioning and performance. Dr Hayes identified the stressor, or trigger, for this in the claimant as being the treatment of her by the respondent. It was clear from the claimant’s medical notes that she had visited her general practitioner on three occasions between August and December 2008, during which time she was prescribed Fluoxetine, and the claimant clearly attributed her then symptoms to the difficulties she was experiencing with the respondent.
46. The Tribunal noted and accepted the medical evidence. The Tribunal was impressed with the consistency between the medical evidence and the evidence of the claimant. Also the Tribunal noted that the claimant had been eager to stop her medication and to cope with her life when her employment related difficulties began to be manageable.
47. The claimant stated that in addition to the respondent’s initial treatment of her she had suffered further distress at having to bring these proceedings. This distress had been greatly exacerbated by the false allegations and untruths contained in the respondent’s communications and his response.
48. The claimant also stated that the respondent’s coffee shop unit had closed in March or April 2010 and that finding similar employment had been difficult in the current economic climate. However the claimant stated that she was interested in returning to education and in building on the qualifications she had and was hopeful of going back to do a teaching course where she would then be qualified to teach in catering colleagues.
Submissions
49. The Tribunal heard submissions from the claimant’s solicitor Miceal Canavan. These submissions fall to be considered under the following headings:
The Claimant’s Entitlement to Statutory Maternity Pay
50. Mr Canavan drew the Tribunal’s attention to the fact that the claimant qualified for Statutory Maternity Pay on the basis that she had worked 26 weeks at the end of the period beginning with the 15th week before the claimant’s expected week of confinement. This is on the basis that the claimant had worked for the respondent from July 2005 and her expected week of confinement was the 2 August 2008. Mr Canavan also submitted that the claimant’s evidence in relation to receiving £210.00 net and £250.00 gross per week indicated that Class 1 national insurance contributions ought to have been paid on the claimant’s behalf. Mr Canavan also submitted that the claimant had complied with her duty to give the respondent a notice of date, when she expected the Statutory Maternity Pay and that she had drawn the respondent’s attention to the need to sign the MATB1 on three different occasions during May, June and August 2008, to no avail. Mr Canavan submitted that the claimant satisfied the conditions to qualify for Statutory Maternity Pay for six weeks at 90% of her average take home pay followed by 20 weeks of Statutory Maternity Pay at a fixed rate of £117.68.
Sex Discrimination
51. Mr Canavan submitted that the Sex Discrimination (Northern Ireland) Order 1976, as amended by the 2008 Order, provided that less favourable treatment and subsequent detriment on the grounds of pregnancy amounted to sex discrimination, without the need for the claimant to provide a comparator. Additionally Mr Canavan stated that Paragraph 5a of the 2008 Order provided the claimant with the right to protection against sex discrimination in seeking to exercise her maternity rights. In refusing to facilitate the claimant’s entitlement to Statutory Maternity Pay and, in lying to his accountant and the Tax Office by stating that the claimant worked only three hours a day for five days, the respondent had treated the claimant less favourably and caused her subsequent detriment, which amounted to sex discrimination.
52. Mr Canavan also submitted that the respondent’s suggestion that the claimant should work some hours for him and simultaneously claim benefit was a further act of less favourable treatment and sex discrimination.
Constructive Dismissal
53. Mr Canavan submitted that the respondent’s treatment of and behaviour towards the claimant is so outrageous that it amounted to a breach of the contract between them, entitling the claimant to end her contract of employment. Mr Canavan drew the Tribunal’s attention to his letter to the respondent dated 10 September 2008 indicating that this was the position and noted that the respondent had made no reply to this.
Breach of Contract
54. Mr Canavan submitted that the claimant was owed £546.00 holiday pay, as stated by her. Additionally Mr Canavan submitted that the claimant was owed money, calculable under the Employment Rights (Northern Ireland) Order 1996, in respect of the respondent’s failure to provide her with a contract of employment, a sum of £440.00
The Respondent’s Conduct
55. Mr Canavan asked the Tribunal to note that the respondent had provided the claimant with no contract and no itemised pay statements during her employment, that in addition to refusing to pay her Statutory Maternity Pay and leaving the claimant without money during a critical part of her life the respondent’s response to the claimant claims against him was also outrageous and caused the claimant further hurt and upset. In particular Mr Canavan submitted that the Tribunal should note that the respondent had failed to comply with the grievance procedure and that he subsequently delayed in presenting a response to the effect that two default judgements were entered against him before his response was accepted.
56. Mr Canavan also asked the Tribunal to note that in his response and his email to the Office of Industrial Tribunals and the Fair Employment Tribunal the respondent included statements and allegations that were untrue and were designed to denigrate and humiliate the claimant and seek to blacken her name.
Uplift
57. Mr Canavan submitted that the respondent had been in breach of his obligations under the Employment (Northern Ireland) Order 2003. This was in relation to the respondent’s failure to deal with the claimant’s grievance as requested in Mr Canavan’s letter of 10 September 2009. Mr Canavan submitted that the Tribunal should consider exercising its discretion to increase any award made to the claimant by between 10% and 50% and to the higher limit of that.
Injury to Feelings
58. Mr Canavan submitted that the medical evidence in this case demonstrated that the respondent’s treatment of the claimant had brought about the claimant’s illness of “endogenous depression”. This condition required the claimant to be prescribed Fluoxetine (Prozac). The medical evidence stated that the claimant had a diagnosis of an adjustment disorder, a state of subjective distress and emotional disturbance which interfered with the claimant’s social functioning and performance. Mr Canavan also submitted that the medical evidence stated that the stressor for this condition in the claimant was “a significant difficulty she had encountered regarding her ex-employer and finances since going on maternity leave on July 2008”. Mr Canavan submitted that the medical evidence brought the claimant’s case for injury to feelings into the high band as set out by Vento and updated by Da’Bell v NSPCC.
The Legislation
Sex Discrimination
59. The relevant law in this case is contained in the Sex Discrimination Northern Ireland Order 1976, the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 and relevant case law.
Article 3 of the Sex Discrimination Northern Ireland Order 1976 as amended by the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 provides
“in any circumstances relevant for the purposes of the position to which paragraph (1) applies, a person discriminates against a women if –
(a) he applies to her a provision, criterion or practice which he applies or would equally apply to a man but
(i) which is such that it would be to the detriment of a considerably larger proportion of women than men;
(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied;
(iii) which is to her detriment.
Article 8 (ii) of the Order provides;
(ii) It is unlawful for a person, in the case of a women employed by him at an establishment in Northern Ireland to discriminate against her –
(a) In the way he affords her access to the opportunities for promotion transfer or training or to any other benefits, facilities or services by refusing or deliberately omitting to afford her access to them; or
(b) By dismissing her, or subjecting her to any other detriment.
The Burden of Proof
60. The Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 inserts a new Article 63A into the Sex Discrimination Northern Ireland Order 1976:
Article 63A provides Burden of Proof: Industrial Tribunals.
This Article applies to any complaint presented under Article 63 to an Industrial Tribunal.
(i) Where, on the hearing of the complaint, the complainant proves facts from which the Tribunal could, apart from this article, conclude in the absence of an adequate explanation that the respondent –
(a) has committed an act of discrimination against a complainant which is unlawful by virtue of part 3 or
b) is by virtue of Article 42 or 43 to be treated as committing such an act of discrimination against the complainant;
(ii) The Tribunal shall uphold the complainant unless the respondent proves that he did not commit or as the case may be is not to be treated as having committed that act.
Case law
61. The Tribunal also took into account the relevant case law relating to sex discrimination and unfair dismissal. In particular the Tribunal relied on the guidance by Lord Justice Peter Gibson in Igen Ltd and others v Wong (2005) IRLR 258 which clearly sets out the process by which the Tribunal approaches this reversal of proof. This is a two stage process where the claimant must prove facts from which the Tribunal could conclude there had been unlawful discrimination and if, or when, this is done, the burden of proof shifts from the claimant onto the respondents. They must then show that they did not commit the unlawful discrimination and that the treatment by them of the claimant was not related to her sex.
62. In particular the Tribunal considered the Court of Appeal’s guidance for the operation of this process and has set it out fully to show the steps this Tribunal took in applying the law to the facts found in this case:-
· Pursuant to s 63A of the Sex Discrimination Act, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Pt II or which by virtue of s 41 or s 42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as 'such facts'.
· If the claimant does not prove such facts he or she will fail.
·
It is
important to bear in mind in deciding whether the claimant has proved such
facts that it is unusual to find direct evidence of sex discrimination. Few
employers would be prepared to admit such discrimination, even to themselves.
In some cases the discrimination will not be an intention but merely based on
the assumption that 'he or she would not have fitted in'.
· In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.
· It is important to note the word 'could' in s 63A (2). At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a
Tribunal is looking at the primary facts before it to see
what inferences of secondary fact could be drawn from them.
· In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts.
· These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s 74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within s 74(2) of the SDA.
·
Likewise, the
Tribunal must decide whether any provision of any relevant code of practice is
relevant and if so, take it into account in determining, such facts pursuant to
s 56A(10) of the SDA. This means that inferences may also be drawn from any
failure to comply with any relevant code of practice.
·
Where the
claimant has proved facts from which conclusions could be drawn that the
respondent has treated the claimant less favourably on the ground of sex, then
the burden of proof moves to the respondent.
· It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.
· To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive.
·
That requires
a Tribunal to assess not merely whether the respondent has proved an
explanation for the facts from which such inferences can be drawn, but further
that it is adequate to discharge the burden of proof on the balance of
probabilities that sex was not a ground for the treatment in question.
· Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.
Unfair Dismissal
63. Article 126 of the Employment Rights (Northern Ireland) Order 1996 provides an employee with the right not to be unfairly
dismissed by his employer. Article 130 of the same order indicates that any
dismissal of an employee is fair if the employer shows that the reason for the
dismissal is a reason following within Article 130.
Article 130 states that 130(2) a reason falls
within this paragraph if it –
(a) relates to the capability or
qualifications of the employee performing work of
the kind which he was employed by the employer to do,
(b) relates to the conduct of the employee,
(c) is that the employee was redundant or,
(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of the duty or restriction imposed by or under a statutory provision.
Article 130(4) states where the employer has fulfilled the requirements at paragraph 1, the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
(a) depends on whether in the circumstances (including the size and administrative resources of the employers undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and;
(b) shall be determined in accordance with equity and the substantial merits of the case.
The Tribunal’s Conclusions
Unfair Dismissal
64. The Tribunal concluded that the respondent’s behaviour towards the claimant, in his failure to honour his contractual obligations in respect of her SMP, and his subsequent attempts to have the claimant herself join him in fraudulent actions against the Social Security Agency had fundamentally breached the employment relationship and contract between them claimant. Accordingly the Tribunal concluded that the claimant had been thus unfairly dismissed by the respondent.
Sex Discrimination
65. In the light of the law and the guidance the Tribunal concluded that in view of the fact that the claimant had proved facts from which the Tribunal could draw an inference of discrimination and the Tribunal was satisfied that the respondent had not discharged his obligation to prove that the reason for his treatment of the claimant was not discriminatory, had successfully established her claim of sex discrimination.
66. The Tribunal accepted that the respondent had treated the claimant less favourably on the grounds of her pregnancy and thereby her sex in his failure to pay her the statutory maternity pay to which she was entitled.
67. The Tribunal also accepted that the claimant was hurt, distressed and annoyed by the respondent’s treatment of her and that this had been exacerbated by being so treated at a time when she ought to have been enjoying her new baby. The Tribunal accepted that this treatment of the claimant at this time displaced that enjoyment and gave the claimant such anxiety and concern that it triggered a period of anxiety and depression.
68. The Tribunal also accepted that the respondent’s spurious and malicious allegations against the claimant and his subsequent conduct throughout these proceedings exacerbated and prolonged the claimant’s hurt and distress and her illness.
Compensation
69. The Employment Rights (Northern Ireland) Order 1996 and the Employment (Northern Ireland) Order 2003 make provision at Articles 130 and 152 for the payment by the respondent to the claimant of compensation where the claimant has been unfairly dismissed. The following compensation has been calculated in accordance with those provisions.
Breach of contract
Outstanding Holiday pay £546.00
Basic Award
Gross wage £250 x 3= £750.00
Compensatory Award
Loss of Statutory Rights =
£500.00
Loss of Salary;
From 27.7.2008 - 6.9. 08 @ 90% of nett wage
(£210.00) = £189.00 x 6 = £1,134.00
From 6.9.2008 till 26.1.2009, planned date of return to work
= 20 weeks SMP = £117.68 x 20 = £2,353.60
From 26.1.2009 to 26.4 2010, date of hearing,
=£250 x 68 weeks= £17,000.00
Total Salary Loss = £20,487.60
Total Compensatory Award = £20,987.60
Uplift
70. Under the Employment (Northern Ireland) Order 2003, where a Tribunal finds that the employer has failed to comply with the statutory dismissal procedures the Tribunal may increase the compensatory award to an employee by at least 10% and up to 50%.
71. In this case the Tribunal decided to uplift the award to the claimant by 50% in view of the Tribunal’s findings in relation to the respondent’s failure and his refusal to comply with the statutory grievance procedure, as evidenced by his complete disregard of Mr Canavan’s letter inviting him to consider the claimant’s grievance.
Accordingly the claimant’s compensatory award = £20,987.60
Uplift of 30% £ 6,296.28
Total Award = £27,283.88
Recompense for respondent’s failure to provide a contract of employment;
This is provided for under a combination of the Employment Rights (Northern Ireland) Order 1996, at Article 33 and the Employment (Northern Ireland) Order 2003, at Article 27. The Tribunal decided to award the claimant the sum representing two weeks nett pay = £420.00
Remedies available to the Tribunal in cases of sex discrimination
72. The most common remedy available to a tribunal where sex discrimination has been found, after making a declaration to that effect, is to make the claimant an award in relation to her hurt feelings, Injury to Feelings Award.
73. This award may be added to by an award for personal injuries where the respondent’s treatment of the claimant has caused her a mental or physical injury.
74. This award may also be added it by the making of an award of aggravated damages, made in circumstances where the respondent has exacerbated the hurt and distress caused by his original treatment by continuing to cause hurt and distress by his actions and attitude towards the claimant during proceedings.
75. As there is no monetary limit on the amount of an award for injury to feelings the Tribunal was guided by the obligation to exercise its discretion in this regard judicially and reasonably and to do so in light of the guidance given to it by the case law in this area.
Injury to Feelings
76. The Tribunal considered the guidelines set out in the cases of Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102 and Da’Bell v National Society for the Prevention of Cruelty to Children. However the Tribunal also considered the cases referred to in the legal textbook, Harvey and noted in particular the following
Shadrake v Top Grove LLP
Mc Giffen v Campden and Chorleywood Food Research Association
77. The Tribunal considered that the award for injury to feelings in this case fell somewhere near the middle of the “middle band” of injury to feelings. The case law examples and guidance on the level of award for discrimination tends to suggest that, unless heinous, a one-off act of discrimination will attract a lower award than, say, a sustained campaign of harassment. In this case, however, the respondent’s treatment of the claimant was hardly one-off and was more in line with, if not completely analogous to, a campaign of less favourable treatment that would move the level of compensation well into the so-called middle band.
78. In addition to the hurt and distress suffered by the claimant she experienced a heightened anxiety around her lack of income at a time in her life when, having a new baby, her need for an income went beyond her own survival. This caused both an additional anxiety and a diminution in the claimant’s life enjoyment which ultimately lead to a period of depression.
79. Another element of the respondent’s treatment that the Tribunal has taken into consideration in making its award for injury to feelings are those aspects of it that caused the claimant feelings of hurt and betrayal. The claimant had been a loyal and hardworking employee and had been trusted by the respondent to look after his business throughout her work with him, including his confidence in leaving her in charge while he went on holiday. The claimant was willing and happy to do this and did so up until the day before her baby was born. The claimant believed that she enjoyed the respondent’s respect and even friendship. The respondent’s subsequent treatment of the claimant was all the harder for her to believe, adding bewilderment and hurt to her anxiety and distress.
The Tribunal awards the claimant £12,000.00 for injury to feelings
Personal Injury
Cases considered
Vento
Yamaguchi v Orlean Investment Services Ltd and Kotronias 2006
80. The Tribunal took account of the medical evidence and noted in particular that the respondent’s treatment of the claimant had caused her to experience a bout of depression. The Tribunal also took account of the fact that the claimant had been prescribed Fluoxetine. The Tribunal also noted that this period of depression and the need for medication was relatively short-lived and that the claimant’s symptoms began to abate as her life circumstances improved.
81. Nevertheless the Tribunal concluded that the claimant’s award for injury to feelings should reflect the fact that the respondent’s treatment of her caused this illness.
The Tribunal awards the claimant £2,500.00 in relation to her personal injury
Aggravated Damages
Cases considered
Vento
Mc Giffin v Campden and Chorleywood Food Research Association 2007
82. The Tribunal accepted that this was a case where there should be an award for aggravated damages. Again the Tribunal considered the case law and noted that an award for injury to feelings could be increased by a figure to reflect features in the respondent’s conduct that aggravated the claimant’s position, where for example the respondent’s conduct of proceedings brought by the claimant could be described as high-handed, insulting or oppressive.
83. The Tribunal concluded that the respondent’s conduct of these proceedings could be so described. The respondent’s first communication to the Office, before presenting his response, had made derogatory if not defamatory remarks and allegations about the claimant that were designed almost certainly to undermine her claim and blacken her character.
84. Further the respondent reiterated his allegations and aspersions against the claimant in the response he presented. The Tribunal noted that that response did not otherwise make a serious attempt to address the issues raised by the claimant’s claims.
85. Characteristic to both the respondent’s email and his response were phrases like “I am looking forward to defending this” (the claims) and “Yes, I will be resisting this claim” and “I look forward to attending court and telling it as it is”. These phrases were written to convey at least a determination and resolve to defend the claims, which any respondent is entitled to do but they also conveyed an unnecessary oppressive tone, as if they were added not only to express such legitimate resolve to expose the truth of the situation but further to undermine the claimant herself. They were also written in the context of allegations and comments that were almost certainly designed not to address that claimant’s claims but to present the claimant herself in the worst possible light.
86. Accordingly the Tribunal concludes that the claimant should receive the sum of £15,000 compensation for injury to feelings, to include £3,000.00 aggravated damages.
87. The total sum for compensation for injury to feelings is therefore £17,500.00.
88. In accordance with its obligations to consider making an award of interest in relation to the claimant’s award for injury to feelings, under The Industrial Tribunals (Interest on awards in sex and disability discrimination cases) Regulations 1996 the Tribunal declined to make an award for interest. This was on the basis that the Tribunal concluded that a serious injustice to the respondent could arise, bearing in mind that the claimant accepted that the respondent’s business had closed down in March 2010.
Recoupment
89. This is a relevant decision for the purposes of recoupment of benefit received by the claimant.
The Employment Protection (Recruitment of Jobseekers Allowance and Income Support) Regulations (Northern Ireland) 1996 apply in this case. These Regulations require the Tribunal to set out
(a) the monetary award;
(b) the amount of the prescribed element, if any:
(c) the dates of the period to which the prescribed element is attributable; and
(d) the amount if any by which the monetary award exceeds the prescribed element.
90. Rule 4 Paragraph 2 of these Regulations states where the Industrial Tribunal in arriving at a monetary award makes a reduction on account of the employee’s contributory fault or on account of any limit imposed by or under the 1992 Act or the 1996 Act, a proportionate reduction shall be made in arriving at the amount of the prescribed element.
91. The prescribed element is that amount of the monetary award which represents a rate of pay or compensation for loss of earnings, up to the date of the Tribunal hearing. In this case that period runs from the date the claimant was in receipt of Income Support, 4 March 2009 until 26 January 2010 a period of 47 complete weeks
= £52.00 x 47 =£2,444.00
Accordingly the amount by which the monetary award exceeds the prescribed element in this case is £28,999.88 less £2,444.00 = £26,555.88.
92. The attached Recoupment Notice forms part of the decision of the Tribunal.
93. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 26 April 2010, Belfast.
Date decision recorded in register and issued to parties:
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT
1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.
|
|
£ |
|
(a) Monetary award |
28,999.88 |
|
(b) Prescribed element |
2,444.00 |
|
(c) Period to which (b) relates: |
4 March 2009 to 26 January 2010 |
|
(d) Excess of (a) over (b) |
26,555.88 |
The applicant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the applicant in respect of that period; (b) is not payable until the Department of Health and Social Services has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the applicant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the applicant.
2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
3. The applicant will receive a copy of the recoupment notice and should inform the Department of Health and Social Services in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the applicant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the applicant and regardless of any dispute between the applicant and the Department.
