Niculae v Wellington's Coffee Shop and R... Donna O'Kane [2014] NIIT 1786

THE INDUSTRIAL TRIBUNALS

CASE REF: 1786/13

CLAIMANT: Mirela Niculae

RESPONDENTS: 1. Wellington’s Coffee Shop and Restaurant Ltd

2. Donna O’Kane

DECISION

(A) The claimant’s claims against Wellington’s Coffee Shop and Restaurant Ltd (“Wellingtons”) are not well-founded. Accordingly, those claims are dismissed.

(B) The claimant’s claim of unfair dismissal against Donna O’Kane (“Ms O’Kane”) is
well-founded. It is ordered that Ms O’Kane shall pay the claimant the sum of £1,140 in respect of that unfair dismissal.

(C) The claimant’s discriminatory dismissal claim, under the Sex Discrimination (Northern Ireland) Order (“the SDO”) against Ms O’Kane, is well-founded and it is ordered that Ms O’Kane shall pay to the claimant the sum of £12,316 in respect of that claim.

(D) The claimant’s claim of discriminatory dismissal, under the Race Relations Order against Ms O’Kane, is well-founded. However, the tribunal has decided not to make any award in respect of that claim.

Constitution of Tribunal:

Employment Judge: Employment Judge Buggy

Members: Mr E Grant

Ms T Madden

Appearances:

The claimant was represented by Mr G Grainger, Barrister-at-Law, instructed by the Equality Commission.

Ms O’Kane was not present. Neither of the respondents was represented.

REASONS

1. In these proceedings, the claimant now complains only in respect of her dismissal.

2. The claimant was employed in a coffee shop in Ballymena, which was known as “Coffee Couture”, from September 2012 until 5 August 2013.

3. During the course of a Pre-Hearing Review in this litigation, it was decided that, in August 2013, Cafe Couture was the subject of a “relevant transfer”, within the meaning of the Transfer of Undertakings (Protection of Employment) Regulation, 2006 (“TUPER”), whereby any liability in respect of the claimant’s dismissal became the responsibility of the transferee under that transfer.

4. During the course of this hearing, we considered the contents of a bundle of documents provided on behalf of the claimant. We also considered the evidence which she provided to us as a witness. We also considered the respondents’ response in these proceedings and the letter dated 6 November 2013 from Ms O’Kane’s solicitor (together with the correspondence referred to in that letter).

5. In our view, the relevant facts were accurately summarised by the claimant, in her industrial tribunal claim form.

6. She had been working at Cafe Couture since the end of September 2012. On 27 July 2013, Mr Ian Brown (on behalf of the then owner of the business, Cafe Couture Ltd) and Ms O’Kane (who was at that time the manager for Cafe Couture Ltd) organised a meeting with all the staff, at which the staff were informed that Cafe Couture Ltd had “sold out the business” and the new owner of the business would be Ms O’Kane. At the same meeting, she told the staff that none of them had a safe job anymore and that she was going to tell them the following week who was going to have a job under the new regime. On 29 July, she told the claimant that there was no point in her working there any more because of the fact that she (the claimant) was pregnant and therefore would only be able to work for another two months; her advice to the claimant was that she should apply for Jobseeker’s Allowance. The claimant was never offered a job by Ms O’Kane. She was given her P45 on 5 August 2013.

7. The claimant considered that the omission to offer her a job under the new regime had happened because she was pregnant. She was upset about that. The claimant noted that only three of the staff of Cafe Couture were Romanian; that none of those three had been offered employment under the new regime; that all of the rest of the staff were locals, and that many of that latter category of Cafe Couture staff had been offered employment under the new regime. Because of those circumstances, she formed the view that her dismissal was also racially discriminatory.

The unfair dismissal claim (liability)

8. Article 126 of the Employment Rights (Northern Ireland) Order 1996 (“ERO”) confers the right not to be unfairly dismissed. Article 140 of the ERO imposes, as a general rule, a qualifying period of employment in respect of the Article 126 right. (The qualifying period is 12 months of continuous service as an employee prior to dismissal). However, that general rule is subject to exceptions: there is no qualifying period of employment requirement in relation to some reasons for dismissal. One of the reasons which is actionable, by way of an unfair dismissal complaint, without any need for a qualifying period of employment, is “leave for family reasons”, which is referred to in Article 131. The combined effect of Article 131(1), and of statutory rules which were made in relation to that Article, is that an employee is to be treated as automatically unfairly dismissed if the principal reason for the dismissal is of a prescribed kind, or if the dismissal takes place in prescribed circumstances.

9. Paragraph (3) of Article 131, and the relevant statutory rules, make it clear that, in the context of Article 131, a prescribed reason and a prescribed set of circumstances include a reason and/or circumstance relating to pregnancy, childbirth, maternity, or maternity leave.

10. We are satisfied that the claimant was dismissed at the time of the relevant transfer (within the meaning of TUPER). We are satisfied that the main reason for the claimant’s dismissal was the fact that she was pregnant. Therefore, her dismissal was unfair pursuant to Article 131 (1) of ERO.

11. The claimant’s alternative argument was that she was dismissed mainly because of the relevant transfer; we note that the claimant did not meet the Article 140 qualification period, in relation to service, in the context of that ground.

Sexually discriminatory dismissal (liability)

12. If the claimant was dismissed because she was pregnant, that was a sexually discriminatory dismissal (in the sense in which term “sex discrimination” is used in the context of the SDO). A dismissal can be sexually discriminatory even if gender discrimination is not the main reason for the dismissal, so long as it was a significant reason for it.

13. We have reminded ourselves of the burden of proof in gender discrimination cases, as set out in Article 63A of the SDO.

14. In light of the remark which Ms O’Kane made to the claimant about her pregnancy (which we have already mentioned above), we have concluded that the claimant has proven facts from which the tribunal could (apart from Article 63A) conclude, in the absence of an adequate explanation, that the claimant’s dismissal was a sexually discriminatory dismissal. Ms O’Kane did not turn up for the main hearing. We are sure that she has not provided any adequate explanation.

Racial discrimination (liability)

15. The legal principles in relation to racial discrimination are analogous to those in respect of gender discrimination, which we have already explained and applied above.

16. A dismissal will be a racially discriminatory dismissal even if racial discrimination was not the main reason for the dismissal, so long as it was a significant reason for the dismissal.

17. The provisions analogous to the provisions of Article 63A of the SDO are to be found in Article 52A of the Race Relations (Northern Ireland) Order 1997 (“the RRO”).

18. Most of the “local” staff who wanted a job in the new “Wellingtons” Restaurant, after the relevant transfer, were offered a job. The claimant was not offered such a job. The other two Romanian staff in Cafe Couture were not offered such a job either.

19. In our view, the circumstances mentioned in the last preceding paragraph provide proof of facts from which the tribunal could, (apart from Article 52A) conclude, in the absence of an adequate explanation, that the dismissal of the claimant was a racially discriminatory dismissal. Once again, there has indeed been a failure to provide an adequate explanation, and once again that has occurred because of Ms O’Kane’s failure to participate in the main hearing.

Who was the transferee?

20. Who was the transferee under the relevant transfer? In our view, it is clear that Ms O’Kane was the transferee. We note that Ms O’Kane had a business card which asserted that she was the “proprietor” of “Wellingtons Coffee Shop and Restaurant”. We note also that, on Facebook, on 7 November 2013, she stated that the relevant coffee shop was “my coffee shop”. And we note that, on 4 August 2013, Ms O’Kane stated on Facebook that “I am now the proud owner of a coffee shop and restaurant”. Against that background, and because of those circumstances, we are satisfied that Ms O’Kane, rather than a limited company, was the transferee under the relevant transfer. Therefore, it is Ms O’Kane (as distinct from a limited company) who has succeeded to the liabilities of the transferor, in respect of the claimant’s contract of employment, pursuant to regulation 4 of TUPER.

Compensation (general)

21. Paragraph 869 of Division L of “Harvey on Industrial Relations and Employment Law” provides guidance as to the proper way of assessing compensation in cases in which a dismissal is both unfair and sexually discriminatory or racially discriminatory. According to that paragraph:

“Two possibilities are (a) to award the maximum permissible under the head of [an unfair dismissal] compensatory award and then to make the award of further compensation under the heading of ... discrimination or (b) to award all compensation under the head of ... discrimination.”

22. In this context, we also note the provisions of Article 160(1) of ERO:

“160. (1) Where compensation falls to be awarded in respect of any act both under -

(a) the provisions of this Order relating to unfair dismissal, and

(b) any one or more of the following -

(i) the Sex Discrimination (Northern Ireland) Order 1976;

(ii) the Disability Discrimination Act 1995;

(iii) the Race Relations (Northern Ireland) Order 1997;

(iv) the Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003;

(v) the Employment Equality (Age) Regulations (Northern Ireland) 2006.

an industrial tribunal shall not award compensation under any one of those. Orders or Regulations in respect of any loss or other matter which is or has been taken into account under any other of them by the tribunal (or another industrial tribunal) in awarding compensation on the same or another complaint in respect of that act.” [Our emphasis]

23. We are satisfied that the claimant has suffered financial loss as a result of her dismissal.

24. We are also satisfied that she has sustained injury to feelings as a result of the sexually discriminatory nature of the dismissal.

25. We are not satisfied that the claimant has sustained any additional injury to feelings (over and above the injury to feelings sustained by her as a result of the sexually discriminatory nature of the dismissal) because of the racially discriminatory nature of the dismissal.

An unfair dismissal basic award

26. As is well-known, unfair dismissal compensation consists of two basic elements: a basic award and a compensatory award.

27. We have decided to make a basic award in respect of this dismissal.

28. We are satisfied, on the basis of the claimant’s evidence, that the statutory dismissal procedure was not followed in respect of this dismissal. Accordingly, because of the effect of paragraph (1A) of Article 154 of ERO, the claimant is entitled to a basic award amounting to four weeks’ pay, which is an award of £1,140. (The claimant’s gross weekly pay was £285).

29. We have made no compensatory award in respect of the financial loss which she sustained as a result of her dismissal, because of the award which we have made under the SDO (see below, and see paragraphs 21 and 22 above).

Compensation for financial loss and for injury to feelings

30. We have decided to make an award of £7,500 in respect of injury to feelings. We make that award under the SDO.

31. On the basis of the schedule of loss provided on behalf of the claimant and on the basis of the claimant’s own evidence, we are satisfied that the claimant’s net financial loss, sustained as a result of this dismissal, amounted to £4,164. Accordingly, we award £4,164 for financial loss, and we do so under the SDO.

32. We have decided not to uplift the amount awarded under the SDO, because of the small size of the business, and because we are sure that the failure on the part of Ms O’Kane to follow appropriate procedures was the result of ignorance, rather than the result of any deliberate decision on her part to fail to follow the appropriate procedures.

33. We have noted the provisions of the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 [SRNI 1996/581]. We are not of the opinion that, in relation to the relevant award, there are circumstances which have the effect that serious injustice will be caused to Ms O’Kane by awarding interest in respect of the entire award, or in respect of the entire period.

34. Applying the rules which are contained within the 1996 regulations, the position is as set out in the next following two paragraphs.

35. In respect of the injury to feelings aspect of this award, we award interest at 8% per annum on £7,500, from date of injury to date of calculation. That amounts to £510.

36. We award interest at 8% per annum in respect of the financial loss element of the claimant’s compensation throughout the duration of half of the period from the date of the act of discrimination until the date of calculation. That amounts to £142.

Summary

37. Accordingly, the claimant is entitled to a total award of £13,456.

38. That award has two main elements: (1) a basic award of £1,140 under the unfair dismissal legislation and (2) the remainder of the award, which amounts to £12,316. The latter figure, of £12,316, consists of £7,500 for injury to feelings, £4,164 for financial loss and £652 for interest pursuant to the 1996 Regulations. We have made no award under the RRO (see paragraphs 21 - 25 above).

Interest

39. This Decision itself attracts interest, pursuant to the Industrial Tribunals (Interest) (Northern Ireland) Regulations 1990.

Employment Judge:

Date and place of hearing: 22 May 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 >> Niculae v Wellington's Coffee Shop and R... Donna O'Kane [2014] NIIT 1786_13IT (18 July 2014) URL: http://www.bailii.org/nie/cases/NIIT/2014/1786_13IT.html Cite as: [2014] NIIT 1786_13IT

Industrial Tribunals Northern Ireland Decisions