Kujawa v Sunstart Bakery Ltd [2012] NIIT 00970

THE INDUSTRIAL TRIBUNALS

CASE REF: 970/11

CLAIMANT: Anna Kujawa

RESPONDENT: Sunstart Bakery Limited

DECISION

The decision of the tribunal is that the claimant was not unfairly dismissed and she did not suffer race or sex discrimination. The claimant’s claims are therefore dismissed.

Constitution of Tribunal:

Chairman: Mrs Ó Murray

Members: Mr H Stevenson

Mr G Hunter

Interpreter: Ms Sherwood

Appearances:

The claimant appeared in person.

The respondent was represented by Mr A Ferguson of Personnel and Training Services.

THE CLAIM

1. The claimant’s claim was for race discrimination, sex discrimination and unfair dismissal. Specifically the claimant claimed that she was treated detrimentally because she was pregnant and Polish.

THE ISSUES

2. The issues for the tribunal were as follows:-

1. Was the placing of the claimant on temporary lay-off on 29 October 2010 an act of race or sex discrimination?

2. Was the claimant selected for redundancy due to her sex (specifically her pregnancy) or race?

3. Was the claimant unfairly dismissed in that she received lower scores than she should have? Did a co-worker, MS, receive higher scores than she should have?

4. Did the failure to transfer the claimant to other duties constitute race or sex discrimination?

5. Did the failure to carry out an individual pregnancy risk assessment on the claimant constitute sex or race discrimination?

SOURCES OF EVIDENCE

3. The tribunal heard evidence from the claimant on her own behalf and from her witnesses, Mr K Doherty of ICTU, and Ms K Garbil who acted as interpreter at the redundancy consultation meeting. For the respondent, the tribunal heard evidence from Mrs McFetridge of Human Resources, Mr K Pietras, the claimant’s supervisor and Mr Lanigan, a manager.

THE LAW

4. The law on unfair dismissal is set out in the Employment Rights (Northern Ireland) Order 1996 as amended (referred to below as “ERO”). The right not to be unfairly dismissed is set out at Article 126 of the ERO and at Article 130 are listed the potentially fair reasons for dismissal, one of which is redundancy. It is for the employer to show that the dismissal was for one of the potentially fair reasons.

5. Redundancy is defined at Article 174 of ERO. Redundancy is a potentially fair reason for dismissal and it is for the tribunal to consider whether the respondent acted reasonably or unreasonably in treating redundancy as a reason for the dismissal of the claimant.

6. In the case of Williams v Compair Maxam Limited 1982 IRLR 83 the EAT gave guidance to tribunals on determining the question of whether or not a redundancy dismissal was fair. In summary, the principles set out in that case are as follows:

(i) The employer will seek to give as much warning as possible of impending redundancies.

(ii) The employer will consult the union, if any, as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible.

(iii) The employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.

(iv) The employer will seek to ensure that the selection is made fairly in accordance with these criteria.

(v) The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.

7. The tribunal must not substitute its own view for that of the employer but must ask itself whether the selection made was one that a reasonable employer, acting reasonably, could have made.

8. The Court of Appeal in the case of British Aerospace PLC v Green 1995 IRLR 437 indicated that the tribunal should not approach its task by conducting a minute examination of the selection process. Waite LJ stated as follows:

“Employment law recognises, pragmatically, that an over-minute investigation of the selection process by the tribunal members may run the risk of defeating the purpose which the tribunals were called into being to discharge, namely a swift, informal disposition of disputes arising from redundancy in the workplace. So in general the employer who sets up a system of selection which can reasonably be described as fair and applies it without any overt signs of conduct which mars its fairness will have done all that the law requires of him.”

9. Discrimination on racial grounds is covered by the Race Relations (NI) Order 1997 as amended (referred to below as the RRO).

10. Direct discrimination is defined at Article 3(1)(a) of RRO. At Article 6(2)(c) it is stipulated to be unlawful for an employer to discriminate against an employee by dismissing him or subjecting him to any other detriment. It is for the employee to prove facts from which the tribunal could conclude that the employer’s treatment was on grounds of the claimant’s race, and that the treatment was less favourable in the way that the employer treated or would have treated someone not of the claimant’s race.

11. Racial grounds is defined at Article 5 as meaning colour, race, nationality or ethnic or national origins.

12. The Statutory Dismissal Procedures (SDP) are set out in the Employment (NI) Order 2003 (Dispute Resolution) Regulations 2004 and in the Employment (NI) Order 2003. Essentially there are three steps in the minimum disciplinary and dismissal procedure. Step one involves the employer writing to the employee setting out the grounds for the proposed action and inviting the employee to a disciplinary meeting to discuss the matter. Step two involves holding a meeting and notifying the employee of the decision and the right of appeal. Step three involves inviting the employee to an appeal meeting if the employee avails of the appeal process and notifying the employee of the appeal decision.

13. The Sex Discrimination (Northern Ireland) Order 1976, as amended, (“the SDO”) provides, at Article 5A, that less favourable treatment of a woman on the grounds of the woman’s pregnancy amounts to sex discrimination.

14. Article 8(2)(b) of SDO prohibits discrimination by way of dismissal or by subjecting a woman to any other detriment.

15. Under Article 131 of ERO an employee shall be regarded as unfairly dismissed if the reason, or principal reason, for the dismissal is pregnancy.

16. In summary, subjecting a woman to detriment or dismissal where the principal reason is the claimant’s pregnancy is prohibited by both the SDO and ERO, as such acts constitute direct discrimination on grounds of sex, automatic unfair dismissal and are specifically rendered unlawful by provisions enacted to protect pregnant workers.

17. In sex discrimination claims, the burden of proof operates as follows. It is for the claimant to prove facts from which the tribunal could conclude that an act of unlawful discrimination has occurred. If the claimant proves such facts the burden of proof shifts to the employer to show that discrimination was not the reason for the alleged discriminatory treatment.

FINDINGS OF FACT AND CONCLUSIONS

18. We observed carefully the demeanour of the witnesses in reaching our conclusions. In particular, we found Mr Pietras to be a credible witness.

19. The claimant was employed as a bakery operative on the night-shift from October 2008 until 24 January 2011 when she was made redundant.

Temporary Lay-Off

20. The claimant informed her supervisor Mr Pietras on 18 October 2010 that she was pregnant. The next day the claimant was told that she had to take one month’s unpaid leave and the claimant believed that this was because she had told her employer that she was pregnant.

21. The respondent had lost a substantial volume of work. In order to avoid redundancies the respondent decided to lay off staff in rotation for a month at a time beginning in August 2010. The decision to make lay-offs was made before the claimant informed the respondent that she was pregnant.

22. The claimant worked on night-shift along with three other employees and a supervisor all of whom were Polish like the claimant. The first employee on the claimant’s shift to be laid off for one month was NJ who was a Polish female who was pregnant at the time. She was laid off in August 2010. The next employee on the claimant’s shift to be laid off was a Polish male MB who was laid off in September. The claimant was the next person to be laid off for one month.

23. The night-shift staff were chosen in no particular order as their skill level was similar. Mr Pietras candidly accepted that he picked NJ first because she was pregnant and seemed tired. We do not regard this as an indication that the supervisor was badly disposed towards pregnant women. NJ was liable to have one month off in the four-month period and the fact that she was chosen first was not to her detriment in those circumstances and in circumstances where all other staff, male and female, would take their turn after her.

24. We accept the respondent’s case that the claimant was simply taking her turn to be laid off and that it was nothing to do with her pregnancy, her sex, her race or nationality. Our principal reasons for so finding are as follows.

(i) The temporary lay-off had already begun on the claimant’s shift two months earlier and one of the two staff laid off was male.

(ii) Staff on the day shift who were not key workers were laid off in rotation in this way.

(iii) We accept Mr Pietras’ evidence that he made reference to the job being hard for a pregnant woman in the context of him telling the claimant that she should take breaks and not lift heavy things and should seek help to do any heavy lifting.

Grievance

25. By letter of 29 October 2010 the claimant raised a grievance about the temporary lay-off as she believed it was related to her pregnancy and race. She also complained that her supervisor had said that only the two pregnant employees on her shift would be involved in being laid off.

26. The respondent invited the claimant to a meeting to discuss the grievance and that meeting took place on 10 November 2010. The claimant was accompanied by Mr K Doherty of the Irish Congress of Trade Unions (ICTU) at the meeting on 10 November 2010. Management clarified that all those on the night-shift would take it in turns to be laid off.

27. The outcome of the grievance meeting was that the claimant and Mr Doherty were satisfied with management’s clarification of the position and with their proposal that a rota of all staff to be laid off on the night-shift would be drawn up to make it clear.

28. The outcome of the grievance was sent by letter to the claimant on 23 November 2010 and the claimant was notified of her right to appeal.

30. The claimant says that she did not appeal against the outcome of the grievance because she did not get the letter. We do not need to reach a conclusion on this matter as this would only be relevant if compensation were being awarded.

Redundancy

31. The respondent decided that redundancies were necessary due to the downturn in work. Five redundancies were required from the pool of packaging and bakery operatives who worked on the day- and night-shifts.

32. The system was that each member of staff was scored on a redundancy evaluation form on 12 December 2010. The night-shift scoring was carried out by Mr Lanigan the bakery manager, Mr Pietras the supervisor of the night-shift and Mrs McFetridge of HR. This followed a memorandum to all staff on 7 December 2010 warning of the need to make redundancies and inviting volunteers to come forward. No volunteers had come forward.

33. The claimant made no criticism of the criteria adopted but, at tribunal, attacked the redundancy evaluation in the following respects:

(i) That she should have received 20 marks rather than 10 marks under the heading “Standard of workmanship” in Box 1.

(ii) That she should have received 20 marks instead of 10 marks under the heading “Flexibility/additional skills” in the subheading “Ability to follow company policies (no jewellery, no food, no drink, no eating on factory floor etc)” in Box 2.

(iii) That a female Polish co-worker MS on her shift should have received fewer marks than 20 under the heading “Timekeeping” because she started late on numerous occasions.

34. The claimant lost points in Box 1 under the heading “Standard of workmanship” and the subheading “Meets this standard on most occasions but needs easy access to supervision and advice. Occasionally displays a flexible work attitude”. Mr Pietras gave examples of when he had to speak to the claimant about her work rate and her work and this was the reason for her score.

35. We do not accept that Mr Pietras marked the claimant down under Box 1 because she was Polish or because of her sex or pregnancy. Our principal reasons for so finding are, that Mr Pietras is Polish and he scored another pregnant Polish worker who retained her job (when compared to those on both the shifts) because of her score.

36. The lower score under Box 2 was because of an incident relating to the claimant wearing earrings. The claimant accepts that she wore earrings and was spoken to by her supervisor because company policy was that no jewellery should be worn. The parties agreed that the claimant was allowed to wear the earrings as she had just got her ears pierced and was about to get married. Mr Pietras, however, gave evidence to say that he told the claimant that she would have to stop wearing earrings after the wedding. Despite this, Mr Pietras had to speak to the claimant on several occasion’s about continuing to wear earrings. Whilst this did not result in disciplinary action being taken against the claimant, it led to her receiving a lower score as Mr Pietras considered that it affected her ability to follow company policies.

37. At no stage did the claimant allege that Mr Pietras was not justified in speaking to her and at no stage did the claimant dispute that she had been spoken to by Mr Pietras after her wedding.

38. Against this background, we find that the respondent was not unjustified in giving the score in Box 2. We find that the scoring was not tainted by sex discrimination or race discrimination nor was it connected to the claimant’s pregnancy.

39. We accept the respondent’s evidence that there was a system in place whereby an employee could clock in up to five minutes past their starting time and that this would not count against them for pay or disciplinary purposes. In essence it was not counted as a late start. The policy was displayed on a notice on the company notice board and this notice was produced at hearing. The claimant said that she was not aware of this policy and had never seen the notice. In our experience this is not an uncommon type of system and we accept the respondent’s evidence on it. The result of this was that MS received 20 out of 35 points for timekeeping as a number of her late clock-ins where not counted against her. We do not regard this as a flaw in the scoring system as it was consistent with the respondent’s existing policy of allowing leeway on start times.

40. We do not accept that the scoring of MS (who was female and Polish) was unfair nor was it tainted by sex or race discrimination. The scoring of MS on timekeeping was in line with the respondent’s policy of disregarding late clock-in up to five minutes after the start time. This consistency was reasonable and we not accept that the scoring was flawed in that regard.

41. The claimant was made redundant because of her score. We do not accept that the claimant was marked down because she raised a question about the temporary lay-off situation. The claimant’s letter of dismissal was dated 25 January 2011.

42. The claimant’s pregnant Polish co-worker NJ was kept on as her score was higher than the five who were selected for redundancy.

43. The respondent consulted with the claimant at a meeting on 11 January 2011 following a letter of 15 December 2010. Both sides complied with the SDP.

Transfer Request

44. The claimant alleged that she requested a transfer from the night-shift to the
day-shift and that the failure to arrange the transfer amounted to a detriment or discrimination.

45. We accept that her supervisor told the claimant to take specific measures because of her pregnancy to avoid risks. We accept that Mrs McFetridge reiterated this when she was approached by the claimant and NJ to ask for a move to other duties. This happened at the meeting on 22 November 2010 which took place at the behest of all of the employees on the night-shift because they were concerned about being laid off unpaid. NJ and the claimant took the opportunity to ask about being moved. It seems that the claimant’s aim was to move from the night-shift to the day-shift.

46. We accept the respondent’s evidence that the work on both shifts was essentially the same and that no transfer to the day-shift was available because three members of day-shift staff were already rotating monthly periods of being laid off without pay. We do not find that the failure to transfer the claimant amounted to an act of discrimination on any grounds.

Risk Assessment

47. The claimant alleged that no risk assessment was carried out on her despite a promise that one would be carried out by someone from outside the factory. We accept Mrs McFetridge’s evidence that she made no such promise. We accept that general risk assessments for pregnant employees were carried out and that the most recent one was dated 10 October 2010. This was done following a change in a large customer’s procedures which necessitated a review of all the risk assessments.

48. At the hearing the claimant was very concerned about the assurance she felt she had received on 22 November 2010 that someone from outside the factory would assess whether or not other work could be provided for her because of her pregnancy. We find that this was probably due to a misunderstanding by Mr Pietras due to his lack of fluency in English when communicating Mrs McFetridge’s comments to the claimant on that date. We do not find it plausible that Mrs McFetridge would have promised this particularly in circumstances where there was a risk assessment in place and it was part of her job to carry that out as necessary. The claimant had been told about making changes to her work to take account of her pregnancy and this had been reiterated by Mrs McFetridge.

49. We do not find the claimant to have suffered a detriment nor did she suffer discrimination due to failure to carry out an individual risk assessment on her.

UNFAIR DISMISSAL

50. The respondent complied with the SDP. It is not for us to step in to the shoes of the employer and assess the claimant’s suitability for redundancy nor is it our job to look in great detail behind the scoring. The test we must apply is whether there was something overt about the application of the criteria or the scoring which marred its fairness. We must assess whether or not the application of the redundancy criteria and the decision to make the claimant redundant were within the band of reasonable responses for a reasonable employer. We find that the process and the decision were within that band and the claimant was therefore not unfairly dismissed.

SUMMARY

51. There were credible reasons for the scores which were in issue at the tribunal hearing. The reasons for the scores were not tainted by discrimination of any kind nor were they unfair.

52. The claimant did not suffer unlawful discrimination in any other respect.

53. The claimant’s claims of unlawful discrimination and unfair dismissal are therefore dismissed.

Chairman:

Date and place of hearing: 7-9 November 2011, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Kujawa v Sunstart Bakery Ltd [2012] NIIT 00970_11IT (05 January 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/00970_11IT.html Cite as: [2012] NIIT 00970_11IT, [2012] NIIT 970_11IT

Industrial Tribunals Northern Ireland Decisions