Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  1188/15

 

 

 

CLAIMANT:                  Maria McKeith

 

 

RESPONDENTS:        Frank McCorry, Colin Caruth, Una McRoberts, Marie Coleman, Marian Kane, Carmel Holly, Arder McKeown, Joe Blair, Marie O’Neill, Doreen Gray and Ann Clarke,

The Committee for the time being of Ardoyne Association, an unincorporated association.

 

 

 

DECISION

The unanimous decision of the tribunal is that:

            (1)       the respondents automatically unfairly dismissed the claimant;

            (2)       substantively unfairly dismissed the claimant; and

(3)       directly discriminated against the claimant contrary to the Disability Discrimination Act 1995.

The issue of remedy will be determined at a separate hearing.

 

 

Constitution of Tribunal:

Vice President:                   Mr N Kelly

Members:                             Mr R McKnight

Ms F Cummins

 

Appearances:

The claimant was represented by Ms Suzanne Bradley, Barrister-at-Law, instructed by the Equality Commission.

The respondent was represented by Mr Rory Fee, Barrister-at-Law, instructed by Higgins Holywood & Deazley, Solicitors.

 

Background

 

1.         The Ardoyne Association is an unincorporated body which provides advice services in the Ardoyne area of North Belfast.  In the relevant period leading up to the claimant’s dismissal at the end of March 2015, the respondent employed seven full-time and part-time staff.  Those employed staff were assisted by volunteers and, on occasion, by employees of other organisations.

 

2.         The employees of the respondent were Elaine Burns (Manager), Kevin McGarry (Community Worker and Accounts Assistant), the claimant (part-time Advice Assistant), Karen Fox (Administrative Assistant), Amanda White (Receptionist), Maria McKee (Community Contact Worker) and Lynn Mercer (Cross Community Educational Training). 

 

3.         The respondent organisation generated no revenue and was entirely dependent on grant aid.  That grant aid was provided on an annual basis by several different bodies including the Belfast City Council, the Belfast Regeneration Office, the Northern Ireland Housing Executive and the Community Fund for Northern Ireland (lottery funding).

 

4.         The respondent organisation was part of an umbrella group or consortium known as the North Belfast Advice Partnership.  Each financial year, that consortium put forward separate grant applications on behalf of each member of the consortium.  The grant applications were collated and jointly put forward by a lead partner on behalf of the consortium.  The lead partner who collated those applications changed each year.  For the year 2015/2016, the lead partner was the Vine Centre (Stephen Reid).  In the preceding financial year, which had ended on 31 March 2015, the lead partner had been the respondent organisation (Elaine Burns). 

 

5.         The members of the consortium were:

 

                        (i)         the respondent organisation;

           

                        (ii)        Ballysillan Community Forum;

 

                        (iii)       Tar Isteach;

 

                        (iv)       Ligoniel Improvement Association;

 

                        (v)        Citizen’s Advice Bureau North Belfast;

 

(vi)       the Vine Centre.

 

6.         The claimant had started work for the respondent organisation as a volunteer in May 2010.  Her employment as a paid adviser began on 1 November 2010 and ended on 27 March 2015, when she was dismissed.

 

7.         The respondent argued that the claimant had been dismissed fairly on the ground of redundancy.  It argued that sufficient funding had not been confirmed or put in place and that the procedure had been fair.  There was no specific concession that the statutory dismissal procedure had not been implemented by the respondent but it is clear that it had not been.

 

8.         The claimant argued that she had been both automatically and substantively unfairly dismissed and that funding had not been the real reason for that dismissal.  She alleged that the dismissal had been an act of associative disability discrimination. 

 

9.         The parties accepted that the claimant had at all relevant times responsibility for a disabled dependent and that the claimant had been the primary carer.

 

Relevant law

 

Unfair dismissal/Selection for Redundancy

 

10.       Article 130(1) of the Employment Rights (Northern Ireland) Order 1996 provides:-

 

“In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

 

(a)       the reason (or if more than one, the principal reason) for the dismissal; and

 

(b)       that it is either a reason falling within Paragraph (2); or

 

... .”

 

            Article 130(2) of the 1996 Order provides:-

 

                        “A reason falls within this paragraph if it –

 

                                    ...

 

                                    (c)        is that the employee was redundant;

 

                                    ... .”

 

11.       In Polkey v AD Dayton Services Ltd [1988] ICR 142, Lord Bridge stated:-

 

“In a case of redundancy, the employer will normally not act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis in which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation.”

 

12.       In Langston v Cranfield University [1988] IRLR 172 stated:-

 

“Where an applicant complains of unfair dismissal by reason of redundancy we think that it is implicit in that claim, absent agreement to the contrary between the parties, that the unfairness incorporates unfair selection, lack of consultation and failure to seek alternative employment on the part of the employer.”

 

13.       In Mugford v Midland Bank [1997] IRLR 208, the EAT stated:-

 

“It will be a question of fact and degree for the tribunal to consider whether consultation with the individual and/or his union was so inadequate as to render the dismissal unfair.  A lack of consultation in any particular respect will not automatically lead to that result.  The overall picture must be viewed by the tribunal up to the date of termination to ascertain whether the employer has or has not acted reasonably in dismissing the employee.”

 

14.       Under the 1996 Order, as amended by the Employment (Northern Ireland) Order 2003, a dismissal (including the termination of a fixed-term contract) will be automatically unfair if a three step statutory procedure is not followed by the employer.  That, in summary, is writing to the employee with the grounds of potential dismissal, holding a meeting with the employee and reaching a decision, and holding an appeal. 

 

15.      Disability Discrimination/Associative Disability

 

The Disability Discrimination Act 1995 provides:

           

“3A Meaning of “discrimination”

 

(5) A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.”

 

16.      The 1995 Act provides at S. 17 A (1C) that:

 

“Where, on the hearing of a complaint under subsection (1), the complainant proves facts from which the tribunal could, apart from this subsection, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act”

 

Shifting burden of proof

 

17.       The proper approach for a tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof in relation to discrimination has been discussed several times in case law.  The Court of Appeal re-visited the issue in the case of Nelson  v  Newry & Mourne District Council [2009] NICA - 3 April 2009.  The court held:-

 

“22      This provision and its English analogue have been considered in a number of authorities.  The difficulties which tribunals appear to continue to have with applying the provision in individual cases indicates that the guidance provided by the authorities is not as clear as it might have been.  The Court of Appeal in Igen  v  Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a tribunal to go through a two-stage decision-making process.  The first stage requires the complainant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination.  Once the tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination.  In an annex to its judgment, the Court of Appeal modified the guidance in Barton  v  Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333.  It stated that in considering what inferences and conclusions can be drawn from the primary facts the tribunal must assume that there is no adequate explanation for those facts.  Where the claimant proves 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.  To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex.  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 be adduced to discharge the burden of proof.  In McDonagh  v  Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.

 

 23       In the post-Igen decision in Madarassy  v  Nomura International PLC [2007] IRLR 247 the Court of Appeal provided further clarification of the tribunal’s task in deciding whether the tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination.  While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen.  The court stated:-

 

‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment.  Those bare facts only indicate a possibility of discrimination.  They are not, without more, sufficient matter from which a tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; ‘could conclude’ in Section 63A(2) must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it.  This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent in contesting the complaint.  Subject only to the statutory ‘absence of an adequate explanation’ at this stage, the tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.’

 

That decision makes clear that the words ‘could conclude’ is not to be read as equivalent to ‘might possibly conclude’.  The facts must lead to an inference of discrimination.  This approach bears out the wording of the Directive which refers to facts from which discrimination can be ‘presumed’. 

 

24       This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination.  In Curley  v  Chief Constable of the Police Service of Northern Ireland [2009] NICA 8, Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination.  The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A.  The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”

 

18.       In S Deman  v  Commission for Equality and Human Rights & Others [2010] EWCA Civ 1279, the Court of Appeal (GB) considered the shifting burden of proof in a discrimination case.  It referred to Madarassy and to the statement in that decision that a difference in status and a difference in treatment ‘without more’ was not sufficient to shift the burden of proof.  At Paragraph 19, Lord Justice Sedley stated:-

 

“We agree with both counsel that the ‘more’ which is needed to create a claim requiring an answer need not be a great deal.  In some instances it will be forwarded by non-response, or an evasive or untruthful answer, to a statutory questionnaire.  In other instances it may be furnished by the context in which the act has allegedly occurred.”

 

19.       In Laing  v  Manchester City Council [2006] IRLR 748, the EAT considered a claim of race discrimination.  However, its remarks in that regard apply equally to a claim of disability discrimination.  It stated at Paragraphs 71 - 76:-

 

“(71)    There still seems to be much confusion created by the decision in Igen  v  Wong.  What must be borne in mind by a tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination.  The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the tribunal on the balance of probabilities that certain treatment had been by reason of race.

 

...

 

 (73)    No doubt in most cases it would be sensible for a tribunal to formally analyse a case by reference to the two stages.  But it is not obligatory on them formally to go through each step in each case.  As I said in Network Road Infrastructure  v  Griffiths-Henry, it may be legitimate to infer he may have been discriminated against on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected.  But at what stage does the inference of possible discrimination become justifiable?  There is no single answer and tribunals can waste much time and become embroiled in highly artificial distinctions if they always feel obliged to go through these two stages.

 

...

 

 (75)    The focus of the tribunal’s analysis must at all times be the question whether they can properly and fairly infer race discrimination.  If they are satisfied that the reason given by an employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is an end of the matter.  It is not improper for a tribunal to say, in effect, ‘there is a real question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he believed or he did and it has nothing to do with race’.

 

(76)    Whilst, as we have emphasised, it will usually be desirable for a tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so.  There is no purpose in compelling tribunals in every case to go through each stage.”

 

                

20.      In Coleman v Attridge Law [2008] IRLR 722, the claimant had been employed as a legal secretary by the respondent firm of solicitors.  She had a disabled son and, after accepting voluntary redundancy, sought to bring a disability discrimination claim relying on her son’s disability.  She argued that protection against discrimination “on grounds of disability” provided by the EC Framework Employment Directive 2000/78 meant that the Disability Discrimination Act 1995 should be interpreted purposively so as to cover discrimination by reason of the claimant’s association with a disabled person.

 

            The European Court of Justice held that the principle of equal treatment and the prohibition of direct discrimination and of harassment applied to an employee who was not himself disabled but who was the primary carer for a disabled child. 

     

Procedural Issues

 

21.      The case had been case managed and the witness statement procedure had been directed.  Witness statements were to be exchanged simultaneously.  Apart from one witness who appeared on foot of a witness attendance order, each witness swore or affirmed to tell the truth and adopted their witness statement as their evidence in chief.  Where necessary, because of the late disclosure of documents by the respondent, additional oral evidence in chief was allowed.  Each witness then moved to cross-examination and re-examination.

 

The tribunal heard from the claimant, Dawn Galway, Stephen Reid (on a witness attendance order), Elaine Burns, Kevin McGarry and Amanda White.

 

22.      At the conclusion of the evidence at the end of the three day hearing, the parties were directed to lodge formal written submissions by 5.00pm on 12 February 2016.  Such submissions were exchanged in advance between the counsel for the two parties.

 

23.      The tribunal hearing the case met on 16 February 2016 and on 10 March 2016 to consider the evidence and submissions and to reach a decision.  This document is the decision.

 

24.      The claimant had originally been unrepresented in this matter.  Her ET1 as originally worded had included only a claim of alleged unfair dismissal.  Before the Equality Commission came on record for the claimant, and when she was still unrepresented, the claimant sought leave to amend that ET1 to include a claim of associative disability discrimination.  That application was resisted by the respondent organisation.  The application to amend was heard by Employment Judge Buggy at a Pre Hearing Review over two days on 8 and 16 October 2015.  The tribunal allowed that amendment in a decision dated 23 October 2015. 

 

25.      The amendment to the claim was restricted to the actual dismissal of the claimant. The permitted additional claim was described as;

 

“(1)      The claimant says that an important reason for her dismissal was the fact that she was absent on certain occasions.

 

(2)       She says those absences were necessary because she needed to care for a person who I will refer to as “x”.

 

(3)       According to the claimant, X had been a disabled person, within the meaning of the Disability Discrimination Act (“DDA”), at all material times.

 

(4)       The claimant says that, by dismissing her because of those absences, the respondent discriminatorily dismissed her, that discrimination being “associative” disability-related discrimination and/or associative direct disability discrimination.”

 

26.      As indicated above, the claimant was still unrepresented at the time of her application to amend her claim and at the time of the pre-hearing review which determined that application.  It took place on 8 and 16 October 2015. The Equality Commission did not come on record for the claimant until 23 November 2015. 

 

27.      When it came on record, the Equality Commission did not apply for leave to further amend the claim to include a claim of associative disability discrimination in relation to actions or non-actions on the part of the respondent which pre-dated the dismissal decision.

 

28.      In any event, the respondent sought a review of the decision dated 23 October 2015 to allow a claim of associative disability discrimination in relation to the dismissal.  At a Case Management Discussion on 20 January 2016, the decision was taken for that review to be determined at the substantive hearing of this matter by the tribunal as currently constituted.  I advised the parties at the commencement of the substantive hearing that I did not believe that such a procedure was possible.  Rule 36 of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 makes it plain that the decision which is challenged shall be reviewed by the Employment Judge or by the full tribunal who made that impugned decision.  It is only if that is not “practicable”, that a different Employment Judge or a different full tribunal should be appointed by the President or the Vice President to hear the application for a review.  I did not see any basis for an argument that it had been “impracticable” for the review to have been determined in the normal way.  In the absence of any indication to the contrary, the currently constituted tribunal could not determine that it had been “impracticable” to have done so and it was therefore not able to proceed to consider the review.  The respondent organisation did not press that matter further. 

 

            The claimant did not pursue a claim of disability related discrimination in relation to her dismissal, and specifically restricted her claim to direct disability discrimination in relation to her dismissal.           

 

29.      This case had been extensively case managed on several occasions and there had been a detailed interlocutory process.  Despite all of that, it is clear that the respondent failed to properly provide discovery of relevant documents as reasonably requested by the claimant or as ordered by the tribunal.

 

30.      The claimant had stated in her original unamended claim on 25 June 2015 that funding was a relevant issue in this case. She had stated: “I believe the reason given for redundancy of no funding to be untrue. I feel I was made redundant due to ongoing issues”. The respondent had stated in an email of 24 March 2015 to the claimant that: “Due to funding situation, your employment with the association will end”. The response filed by the respondent organisation on 7 August 2015 argued that the dismissal of the claimant had been a proper redundancy because of funding difficulties. The respondent cannot at any stage have been unaware of or confused about the relevance of funding, in particular for the 2015/16 financial year.

 

31.      On 9 September 2015 the unrepresented claimant sought discovery of “all documents that are relevant to the issues” including:

 

                        “(1)      all documents regarding notices given in respect of the said

                                    redundancy and notices of risk, for this year and past years

 

                        (2)       all documents of correspondence and communications between

the parties in respect of funding

 

(3)        all minutes of meetings regarding any issue raised for the tribunal to determine, i.e. AGM minutes, committee meetings, partnership meetings”.

 

On the same day the claimant sought discovery of “all documents in relation to funding”

 

            Further correspondence from the claimant on 13 October 2015, 4 November 2015 and 13 November 2015 sought discovery, particulars in relation to funding, and board meetings.

 

32.      For example, the respondent organisation made a written application for funding from the Belfast City Council for the 2015/2016 financial year.  A copy of that written application was not handed over as part of discovery.  It is highly improbable that the respondent organisation had not retained a copy of that written application, as they alleged.  The tribunal found it particularly surprising that an organisation such as the respondent would not have retained a copy of each funding application, if only to deal with queries as they arose, for audit queries or even simply to use as a template for applications in future years.  It is equally improbable that the respondent organisation had not appreciated its obvious relevance to this case. 

 

33.      Mrs Burns was asked in cross-examination whether she had in fact retained a copy of that application.  Her response was “no, not to my knowledge”. 

 

34.      When further asked in cross-examination if she had conducted a search for a copy of that grant application, she stated that she was “not sure”. 

 

35.      Those responses were evasive and entirely unconvincing.

 

36.      A letter dated 11 March 2015 from the Community Fund for Northern Ireland to the respondent agreeing funding for approximately £3,500 for a part-time advice worker had been received by the respondent over two weeks before the claimant was made redundant as a part-time advice worker on the ground of unavailability of funding.  That letter was not handed over as part of the interlocutory process at the appropriate time. Its existence was not confirmed by the respondent until 11 January 2016 after a FOI request from the claimant on 3 January 2016. It was in fact not provided to the claimant until 25 January 2016, just before the commencement of this hearing.  When Mrs Burns was asked in cross-examination to explain the delay in providing such an obviously relevant document, she stated “I don’t know”.  This is an unsatisfactory reply.  It is highly improbable that the respondent organisation did not have that document and even more highly improbable that they did not appreciate its relevance to this case. 

 

37.      When asked why the provision of funds by the Community Fund for Northern Ireland for a part-time advice worker had not been mentioned at all in her witness statement, Mrs Burns’ response was:

 

                        “I have no explanation for that.”

 

38.      An e-mail of 27 March 2015 from Mr Stephen Reid on behalf of the consortium stated that both Belfast City Council and the Belfast Regeneration Office had “confirmed funding” for the forthcoming 2015/2016 financial year.  That date was the date of the claimant’s dismissal on the alleged ground of redundancy because of funding difficulties.  This e-mail had clearly been in the possession of the respondent organisation at all relevant times.  It was not provided by the respondent organisation at any stage to the claimant despite its obvious relevance.  It was in fact provided by Mr Reid from another organisation, the Vine Centre.  When asked why the respondent organisation had not provided a copy of this e-mail to the claimant as part of the interlocutory process, Mrs Burns’ answer was, as it was so often in the course of cross-examination to various questions; “I cannot answer that”.

 

39.      The audited accounts of the respondent organisation were similarly not furnished when requested and indeed were not provided until after the exchange of the witness statements despite repeated requests.  They were eventually provided on 13 November 2015.

 

40.      Minutes of a meeting of the consortium on 21 January 2015 stated that:

 

                        “We have just received confirmation of funding (BCC), it will be the same again as last year.”

 

            That minute had been copied to the respondent organisation and Mrs Burns had been present during that meeting.  The meeting had taken place some two months before the claimant’s dismissal on the ground of redundancy because of funding difficulties.

 

41.      The minutes were of clear relevance to this case.  They were not provided by the respondent organisation to the claimant until 14 January 2016, shortly before the present hearing. 

 

42.      That belated disclosure may or may not be connected to the witness attendance order which had been served on Mr Reid requiring his attendance at the hearing of this matter.  He had chaired that meeting of the consortium.

 

43.      Mrs Burns’ evidence in cross-examination was that all funding confirmations had been received in previous years by 31 March and that, as a result, she had not declared redundancies in any of those previous years.  No documents were produced to support this assertion although they should have been readily available. Despite an assurance by counsel for the respondent organisation, they were not provided during the hearing. The written submission from the ECNI on behalf of the claimant, which has not been challenged, indicates that despite a further written request on 5 February 2016 the documents were not received until 12 February 2016. The ECNI submission, which again has not been challenged, points out that contrary to Mrs Burns’ evidence, the 2014 funding from NIHE, which funded 50% of the claimant’s post, had not been confirmed until 28 April 2014.

 

The evidence of Mrs Burns was therefore inaccurate on a significant point.

 

44.      There is a disturbing pattern of documentation, which on its face potentially lent some support to the claimant’s case, being produced late, reluctantly and in a piecemeal fashion.  Mrs Burns stated in cross-examination that she had provided any document that she had been asked to provide to her solicitor but she could not say when she had done so.  In particular, in relation to the minutes of the meeting of the consortium which had been produced on 14 January 2016, she was unable to say whether she had given those minutes to her solicitor immediately before 14 January 2016, which had been some two weeks before the hearing, or at a much earlier date.  When pressed on the matter and asked whether she had provided the document this year i.e. in 2016, her response was as, was frequently the case in the course of her cross-examination, “I cannot answer the question”. 

 

45.      The manner in which discovery has been provided in this case by the respondent organisation which was legally represented throughout and the manner in which Mrs Burns responded to cross-examination is deeply concerning.  It calls into question both the credibility of Mrs Burns and the attitude of the respondent organisation to both the claimant and to these proceedings.  It had been absolutely clear at all stages that the provision of funding went to the core of this case.  Mrs Burns stated herself in her own witness statement at paragraph 40:

 

                        “In previous years we may not have been in receipt of funding monies by the end of the financial year but we had received financial confirmation that funding was secure for the forthcoming financial year”. 

 

            Mrs Burns’ own statement focussed on the issue of funding and demonstrates that she appreciated its central significance. It also seems clear that that statement suggests in paragraph 40 that no funding had in fact been confirmed for 2015/2016 when a decision was made to implement and to retain the redundancy of the claimant.  That appears to be disingenuous.  Certain funding, including funding directly related to the claimant’s post had been confirmed.

 

Relevant Facts

 

Claimant’s circumstances

 

46.      The claimant had responsibility at all relevant times for the care of a disabled daughter.  She was a single mother and was employed for 16 hours per week as a part-time advice worker by the respondent organisation.

 

47.      At all relevant times, she had been engaged for four mornings per week and Wednesday was her day off.  Her actual total hours of attendance in the office were approximately 14 hours per week.

 

48.      A friend of the claimant, Mrs Dawn Galway, looked after the claimant’s disabled daughter during the hours in which the claimant was engaged to work.  For that reason, the claimant was unable to work longer than 16 hours per week. 

 

49.      The respondent cross-examined Mrs Galway.  It was put to her that she had other responsibilities looking after her own children, looking after other dependants and that she had duties in relation to a school.  It was put to her that she was in fact unable to provide regular help to the claimant and that any help that she could provide was on an ad-hoc or an “as and when” basis.  Mrs Galway’s response throughout was that she had provided such care on a regular basis and that she was able to continue to do so.  The tribunal is satisfied having heard Mrs Galway that she was in fact able to provide that help and that she had done so on a regular basis in the past. 

 

50.      The claimant had worked for four years as an employee.  She had never been subject to any disciplinary or attendance procedure as a result of alleged time off to care for her disabled daughter.  In cross-examination of the claimant, the respondent organisation challenged her assertion that she had only been absent from work for this reason on two or three odd days in the previous year.  It was alleged in cross-examination that she had been absent to care for her disabled daughter on “regular occasions”.  However, no documentary or other evidence was produced by the respondent in the form of diaries, volunteer records, work records, work allocation records or in any other form to support this proposition.  That is surprising and significant.  The respondent organisation appeared to be making a clear suggestion that the claimant had been off work frequently to care for her disabled daughter.  If the respondent had wished to make that suggestion, the tribunal would have expected to see some clear evidence to back it up. That could have been diary records, records of cancelled interviews, records of the engagement of volunteers or other employees to substitute for the claimant, or relevant correspondence.  There was no such evidence.  The tribunal therefore concludes on the balance of probabilities that any relevant absence of the claimant was infrequent and, as indicated by the claimant, for two or three odd days in the preceding year.

 

            It was in any event not argued by the respondent that her dismissal had been prompted by the claimant’s attendance record. The respondent’s case was that the dismissal had been a redundancy dismissal as a result of funding difficulties.

 

27 and 28 November 2014

 

51.      On Thursday 27 November 2014, Mrs Amanda White, the receptionist, had spoken to the claimant by text and telephone call.  Mrs White had telephoned the claimant first and the claimant telephoned Mrs White later in the evening.  Mrs White worked the same hours as the claimant and the two were good friends.  Mrs White booked clients for the claimant and was the receptionist for the advice team.  The advice team comprised Mrs Burns, as part of her full-time post, the claimant, as a part-time advice worker, volunteers and, from time to time, employees from other organisations.

 

52.      On the evening of 27 November 2014 the claimant told Mrs White that her disabled daughter was particularly ill and that she would not be able to attend work on the next day, Friday 28 November 2014.  Mrs White attended work as usual on the 28^th.  She proceeded to try and cancel the two appointments which had been arranged for the claimant that morning.  She had not been in time to cancel the first appointment but she was able to cancel the second.  Mrs Burns was absent from the office attending a meeting. 

 

53.      The second appointment was for a person who had been previously cancelled and who travelled from Divis.  Mrs White was definite in her cross-examination that this appointment had been cancelled in time.  That evidence was clear and convincing and was accepted by the tribunal.  It is significant in that it had clearly been put to the claimant in cross-examination that this particular individual had travelled from Divis and that this could have been avoided if the claimant had instructed Mrs Burns directly that she had intended to be absent on Friday 28 November 2014.  It was suggested that if that had happened, Mrs Burns could have made arrangements to be in the office to deal with this particular appointment.  It is however clear that the appointment had been cancelled in time and that the client had not travelled from Divis as suggested.  This appears to be an instance in which the respondent organisation was attempting to paint the claimant and the claimant’s actions in the worst possible light.

 

54.      In any event, the claimant attended work as normal on her next working day i.e. Monday 1 December 2014.  Mrs Burns called her in to her office and asked her why she had not contacted her directly on either the 27^th or 28^th November as the house manager.  The claimant alleged that Mrs Burns had also told her that her time off was unacceptable and that she had displayed a lack of empathy to the claimant’s personal situation.  Mrs Burns denied saying that or showing a lack of empathy.

 

55.      One part in particular of Mrs Burns’ evidence concerned the tribunal.  Mrs Burns had been asked in cross-examination whether on 1 December 2015 she had said to the claimant that it had been “unprofessional” of her not to have notified her direct line manager.  Mrs Burns stated in reply that she had not said that; that she had asked how the child was and had simply stated that the claimant had needed to contact her when she was unable to attend work.  When it was further put to her in cross-examination that she had actually said in her witness statement that she had told the claimant that it had been “unprofessional”, Mrs Burns accepted that she had said it.  When asked to explain why she had initially denied in cross-examination using the word “unprofessional”, she stated “I can’t answer that”. 

 

56.      There are two different versions of this meeting on 1 December 2014.  Having observed the claimant give evidence in a clear and consistent manner and having also observed the evasive and unconvincing response of Mrs Burns to cross-examination, the tribunal on balance prefers the claimant’s recollection of events.  The tribunal therefore concludes that Mrs Burns had in fact criticised the claimant’s absence and that she had displayed a lack of empathy.  In any event it seems clear that there was some form of confusion about the exact procedure to be followed by an employee when notifying absence from work.  However, since the claimant had notified the receptionist for the advice team, there appears to have been little scope for any real criticism of the claimant’s actions.

 

57.      Mrs White also notified Mrs Burns on the 28^th that the claimant would not be attending work on that day.  It is clear and the claimant accepts that she had not herself notified Mrs Burns directly of her proposed absence.  Two different versions of the staff handbook were produced.  One version required notification only to the “house”, the term commonly used for the administrative office and one version required direct notification to Mrs Burns as the house manager.  Both versions appeared to be genuine and it is clear that at some point the handbook had been amended to insert the word “manager”.  The respondent was unclear as to when that amendment had occurred.  However, as indicated above, the difference between notifying the manager directly, and notifying the team receptionist who then notified the manager, is at most a technical procedural matter.

 

 

2 December 2014

 

58.      On Tuesday 2 December 2014, the claimant’s daughter suffered a severe panic attack when being left to a new school.  The claimant took her daughter home and attended work in a distressed state.  She met Mrs Burns in the reception area and told her that she could not stay at work.  The claimant stated that she wanted to take the rest of the day off.  The next day, Wednesday, was her regular day off in any event and she wanted to return to work on the Thursday.  Mrs Burns denied being told that the claimant wanted to return on Thursday.  There are therefore two different versions of what was said during the meeting and indeed two different versions of Mrs Burns’ reaction to the claimant’s news.  The claimant alleged that Mrs Burns again demonstrated a lack of empathy and Mrs Burns denied this.

 

59.      It is however clear that the claimant was told by Mrs Burns during this meeting that her daughter “was her priority” and that her daughter was more important than work.  It is also clear that while the claimant did not ask to take the whole month of December off work, she had been directed by Mrs Burns to do so.  That direction had been entirely Mrs Burns’ idea and had not been prompted or requested in any way by the claimant. It had not been grounded on any medical evidence suggesting that the claimant had been incapable of work. There had been no such medical evidence. It had not been grounded on any evidence that the claimant would have been prevented from working her normal 14 hours per week, because of her daughter’s condition.  The claimant gave evidence, that we accept, that she found her work helpful in relation to her own well-being.

 

            The claimant was paid for the month of December 2014 but she was not permitted to work during that month because of her disabled daughter and because of her perceived need to care for her daughter during the 14 hours per week which would, in most circumstances, have been covered by arrangements with Ms Galway.  

 

60.      It is clear that other staff had been allowed time off work from time to time to look after their children; to deal with illness, dentist appointments, medical appointments, school plays etc.  No other member of staff had however been instructed to stay off work for an extended period in circumstances where an initial absence had been required to look after a child.  Mrs Burns confirmed in cross-examination this had been the case, stating that in relation to the claimant there were “very exceptional circumstances” with “a disabled child”.

 

            When Mrs Burns was asked directly:

 

                        “So because her child was disabled, you insisted she took time off?”

 

            Mrs Burns replied:

 

                        “Yes”.

 

61.      Mrs Burns confirmed that she was concerned because of the claimant’s daughter’s mental ill health and because difficulties had also been experienced earlier in settling into primary school.  She also anticipated further medical appointments in relation to the claimant’s disabled daughter. 

 

 

5 January 2015

 

62.      The respondent organisation re-opened following its Christmas break on Monday 5 January 2015.  The claimant returned to work on that date and was interviewing a client when Mrs Burns, who was officially on annual leave, called into the office to arrange a handover with a Ms McKinley who was standing in on her behalf.  Ms McKinley was employed by another organisation, the Vine Centre.

 

63.      Ms McKinley did not give evidence to this tribunal. There was no explanation for her absence.  Mrs Burns stated that Ms McKinley had been told by the claimant that the claimant’s daughter had written a suicide letter the previous night and that Ms McKinley had been shown that letter.  Mrs Burns stated that Ms McKinley had told her that she had instructed the claimant to go home as she was not in a fit state to work but that she had continued to work.  Ms Burns did not herself see that suicide letter and did not speak to the claimant. 

 

64.      The claimant stated in evidence that she had indeed been fit to work and had been interviewing her client without difficulty that morning.  Her daughter had been at no particular risk at that stage because her main issue had been going to school and she had remained at home in the care of Mrs Galway.  The claimant had asked only for permission to leave 30 minutes early that day and that had been granted.  However, before leaving work early as arranged, Ms McKinley, after she had spoken to Mrs Burns, had told her to take the rest of the week off.  The claimant stated that she had insisted she was ok to work and had told reception to go ahead and to book her clients in.  She stated that Ms McKinley had refused and had stated that the claimant should remain at home and that Mrs Burns would call her on the following Monday.  The tribunal accepts the clear evidence of the claimant that she had tried to stay at work for the rest of the week and that her request had been refused by Ms McKinley, after Ms McKinley had spoken to Mrs Burns.  If the evidence of the claimant in this respect could have been rebutted by Ms McKinley, she could have been called to give evidence on behalf of the respondent.  She was not called.   

 

65.      It was clear from the cross-examination of Mrs Burns that she had decided after speaking to Ms McKinley that the claimant should go home and not return for the forthcoming week.  Mrs Burns had not spoken to the claimant on this occasion, although she accepted that she had trusted the claimant and also accepted that the claimant had felt capable of continuing working.  When asked whether it was correct that there had been no evidence that the claimant was in such a state that she would have to be sent home, Mrs Burns stated that the evidence was “before me”. It is difficult to see how that was the case when she had not even spoken to the claimant. She stated that she had taken Ms McKinley’s word and she stated that she had agreed with Ms McKinley.  As indicated Ms McKinley did not give evidence to this tribunal. It is however clear that Ms McKinley had not prevented the claimant earlier in the day from working normally and interviewing her client.

 

13 and 14 January 2015

 

66.      Mrs Burns did not in fact contact the claimant until Tuesday 13 January.  It is clear that the claimant asked on that date if she could return to work and equally clear Mrs Burns had told her to stay off and not to return until April.  There was no medical evidence sought and no particular basis for this decision other than Mrs Burns own opinion on the claimant’s ability to work as a result of her position as primary carer for her disabled daughter. 

 

67.      Having listened to both the claimant and to Mrs Burns and having examined the witness statements, the tribunal concludes that the claimant had made it perfectly plain that she wished to return to work on 14 January 2015 and that it had been entirely Mrs Burns’ decision that she should not be permitted to return to work during January, February or March.  That decision had not been supported by any medical evidence in relation to the claimant’s capacity or incapacity to work.

 

68.      It is clear that during this period Mrs Burns had arranged for cover for the claimant’s post to be provided by Mrs McKinley, Ms McCallion and by volunteers.  It is equally clear that Mrs Burns felt that there would be further medical difficulties causing further disruption in relation to the claimant’s daughter.  On the balance of probabilities, it appears clear to this tribunal that Mrs Burns preferred the assurance of having the service covered without the possibility of further disruption caused by the claimant’s position as primary carer for her disabled daughter.

 

Sick Pay

 

69.      The claimant was paid for the month of January but reverted to sick pay thereafter.  Mrs Burns indicated to the claimant in an exchange of texts that the respondent did not “do sick pay”. 

 

           

9 February 2015

 

70.      The claimant sought to return to work and was told that her wages had been reallocated.  Eventually she returned to work on 9 February 2015.  It is clear that during this period two of the individuals engaged to provide advice services were not employed by the respondent.  Ms McKinley was employed by Vine Community Centre and Ms McCallion was employed by Ligoniel Improvement Association.

 

71.      There was an exchange of e-mails at pages 135 and 136 of the bundle.  It is clear that Mrs Burns on 30 January arranged a return to work interview for 9 February with a proposed return to work on the following Wednesday on a two day week until the end of February with consideration at that point about returning to normal hours from March.  The claimant asked for a reason as to why she could not return to work on the following week i.e. on 2 February 2015 as she was able to do so.  Mrs Burns then, and for the first time, asked for a sick line going back to 2 December 2014 and insisted that the return to work interview would not take place until 9 February.  The claimant replied indicating that she felt there had been a wrongful refusal of work. 

 

72.      In cross-examination Mrs Burns was unable to satisfactorily explain why she asked for a sick note going back to the start of December 2014 when it was clear that the claimant had never suggested that she had been ill or incapable of work.  Mrs Burns stated that she had expected the doctor to say “stress and anxiety”.  Given that the claimant had never asserted that she had been medically incapable of work from December 2014, the tribunal cannot understand that expectation. 

 

73.      Mrs Burns similarly was unable explain satisfactorily on cross-examination why her proposed return to work for the claimant incorporated the day in which she had always been off each week i.e. Wednesday.  It seems odd, that if Mrs Burns had been as concerned about the claimant’s childcare arrangements as she had indicated, that she did not attempt to replicate the earlier pattern of working to facilitate that childcare.  That is particularly the case where the claimant’s work had been covered by non employees and by volunteers.  It was equally unclear why even if matters had been as suggested by Mrs Burns, she had not agreed to the claimant’s return to work interview on 2 February immediately after the exchange of e-mails.  Mrs Burns only response to that was that she must have been unavailable although she had no diaries or other corroborative evidence to establish that fact.  Equally, no convincing reason was put forward to explain why the claimant could not have returned to work on 2 February 2015 pending a formal return to work interview the following week on 9 February 2015.

 

AGM 19 February 2015

 

74.      On her return to work, the claimant was not informed of an Annual General Meeting on 19 February 2015.  Mrs Burns stated in cross-examination that she does not actually remember telling her of the AGM but stated “I would have done”.  The tribunal does not find that convincing.

 

Witness Statements

 

75.      It seems clear that, although the parties had been directed that the witness statements should be exchanged simultaneously, the claimant’s witness statement was exchanged first and Mrs Burns had the opportunity of considering the content of that statement before preparing her own.  For example at paragraph 28 of her own witness statement Mrs Burns refers to the timeline attached to the claimant’s statement.  Despite that, when asked whether she had read the claimant’s witness statement before writing her own, Mrs Burns was particularly evasive, asking “did I?” and saying “I can’t be sure”.  She also stated that her solicitor had written her statement after asking her questions.  When asked why that procedure had been adopted rather than writing her own statement, her response was “I was too busy”.  That response does not make sense.

 

76.      It would seem that the same procedure was adopted in relation to Ms White’s statement.  Ms White asserted initially that the statement was “in my own words” but did not know what “protected notice” meant or indeed what a “timeline” was.  Those words appeared in her statement.  Ms White assured the tribunal that the solicitor had made her evidence sound “so much nicer” by writing the statement.  It is not the function of legal representatives to make evidence “much nicer” or to put words in a statement that the witness doesn’t understand.

 

            Written statements in this procedure are meant to be the evidence in chief of each witness in writing. Care needs to be taken by legal representatives, and indeed other representatives, to avoid suggestions that they have sanitised or reworded evidence.

 

77.      Given that Mrs Burns had clearly seen or had had read to her the witness statement of the claimant before her own was prepared, it is odd that she did not take the opportunity of responding in her witness statement to the serious allegations made by the claimant in relation to her return to work and in relation to the allegations that Mrs Burns had not spoken to the claimant on her return to work.  When this was put to Mrs Burns in cross-examination, her response was, yet again, “I can’t answer the question”.  Having heard both the claimant and Mrs Burns the tribunal concludes on the balance of probabilities that Mrs Burns had been annoyed by the claimant’s “perceived unreliability” and had treated her in an unfriendly manner following her return to work.

 

78.      On her return the claimant was underpaid for a brief period.  It would appear that the changes in the National Minimum Wage were not implemented. The matter was rectified when it was raised by the claimant.  It does not seem to have been a significant issue.

 

79.      The claimant stated that when she attended the Annual General Meeting on 19 February 2015, that was the first occasion on which she had been notified that she was at risk of redundancy.  Mrs Burns denied that.  She stated that every person knew they were at risk of redundancy but when asked whether she had told the claimant before the AGM that she was at risk of redundancy at the end of the 2014/2015 financial year, she stated “I can’t say yes or no”.  That seems to be an odd response.  Telling an employee, particularly in a relatively small workforce, that they are at risk of redundancy is a serious matter, and something a manager would be unlikely to forget.

 

80.      It seems clear that funding was an annual issue and yet there had never been any redundancies before.  It is not sufficient for Mrs Burns to state that everybody would have known they were at risk of redundancy simply because of the annual nature of funding.  If funding had always been renewed, whether or not late, and if employment had always continued, there was no reason for anyone, including the claimant, to have perceived a real risk of redundancy, unless this had been positively notified. 

 

81.      The claimant stated that following that indication she had told the respondent that she was willing to work as a volunteer, as other staff eventually did, on redundancy.  Mrs Burns stated that that was not true and that only three staff members had volunteered in that way.  She stated that “I cry out for volunteers – she wasn’t one of them”.  The tribunal finds that unconvincing since the claimant had commenced work as a volunteer.  If there had been genuine difficulties about funding for 2015/16, the tribunal would have expected the possibility of volunteering, or indeed other alternatives, to be raised with the claimant by Mrs Burns.  It is odd that this was not done with the claimant.

 

Termination of employment

 

82.      Kevin McGarry, the community development worker, had taken on responsibility in relation to accounts.  He dealt directly with Mr Derek Browne, the accountant.  On 23 March 2015, the claimant spoke to Mr McGarry in relation to redundancy.  On 24 March 2015, Mrs Burns e-mailed the claimant in the following terms:

 

                        “Due to funding situation your employment with the Association will end.  You are aware that you have been on notice since December 2014, I hope to have your P45 by this Friday along with four weeks’ redundancy.  At the end of your work day Friday, please leave your keys with me.   We wish you well for the future.  I have cc’d Kevin into this e-mail as it is he who will endeavour to have your P45 ready for Friday.”

 

            Mrs Burns stated in her witness statement:

 

            “This was not intended to be a formal notice of termination of her employment but a reassurance regarding her redundancy pay.”

 

            That statement by Mrs Burns, maintained in cross-examination, to put it mildly, is simply not credible.  If the e-mail of 24 March 2015 had simply been a reassurance about potential redundancy entitlement it would have been worded entirely differently.  There would have been no reference to the need to leave keys “at the end of your work day Friday” and there would have been no statement to the effect that “Your employment with the Association will end”.  There would have been no “we wish you well for the future”.  In suggesting that this was anything other than a straightforward dismissal letter, Mrs Burns is being disingenuous. 

 

83.      On the previous day, 23 March 2015, there had been an exchange of e-mails between Mr McGarry and Mr Browne.  It had concerned the preparation of redundancy payments.  Mr McGarry stated:

 

                        “Ok – we will complete Maria first”.

 

            “Maria” was the name used by the respondent on certain occasions for the claimant.  When that was put to Mrs Burns for explanation she simply stated once again “I can’t answer that”.

 

84.      Two other employees were made redundant on 31 March 2015.  One was Amanda White, the Receptionist for the advice team.  She remained working as a volunteer, received a small payment as a volunteer and was rehired on 1 September 2015 in her previous role following an application and an interview.  Karen Fox, the Administration Assistant continued likewise to work as a volunteer, with a small payment until she was rehired on 1 September 2015.

 

Mrs Burns, although she had stated she was crying out for volunteers and even though the claimant had previously worked as a volunteer, did not ask the claimant to work as a volunteer after her dismissal.  The part-time advice post was re-advertised in April 2015 but on different terms.  The hours were reduced to 12 hours per week and the pay was increased to £9.50 per hour.

 

85.      In any event the e-mail of 24 March 2015 had clearly been an unambiguous letter of termination.  Despite Mrs Burns’ assurance in cross-examination that “I wanted to be in accordance with the law”, this was completely outwith the statutory dismissal procedures.  There had been no formal letter outlining the reasons for a proposed redundancy, no meeting, no consultation, and no offer of an appeal process. 

 

86.      It is also clear that Mrs Burns did not consider any alternatives to redundancy and did not ask the claimant whether she could suggest any alternatives to redundancy e.g. a period of volunteering, a period of agreed lay off pending the final clarification of funding or a delayed payment of salary. 

 

87.      It is also clear from Mrs Burns’ response to cross-examination that she did not consider applying for the Community Fund for Northern Ireland grant which had been notified to her on 11 March 2015 as a partial alternative to redundancy.  It is clear that she could have opted to use that money to keep the claimant on for a period or even for reduced hours for the rest of the financial year.

 

88.      On 27 March 2015 the claimant was given her P45 and her redundancy cheque.  That was before any other employee.  There appears to be no convincing reason why the claimant should have been singled out in this way.

 

89.      It is difficult to understand why Mrs Burns decided to follow through with the claimant’s redundancy and indeed to maintain her redundancy when it was clear that not only the Community Fund for Northern Ireland had agreed funding but Belfast City Council had agreed funding.  Two other funders had not yet confirmed funding at that stage i.e. the Northern Ireland Housing Executive and Flax Trust.  Their funding was directed towards half of Mrs Burns’ own salary and Mrs White’s salary.  Mrs Burns did not consider taking partial redundancy herself even on a temporary basis.  She “reprofiled” (Mrs Burns’ word) Belfast City Council funding, which had clearly been hypothecated to 50% of the claimant’s own post, to support her own post instead.  She did not tell the Belfast City Council that she was doing that and did not seek their permission at any stage.  The terms of the grant award made it absolutely plain that she had no authority to do that. 

 

90.      In any event the Northern Ireland Housing Executive confirmed its funding on 24 April 2015.  By that stage Belfast City Council had already confirmed its funding.  There had been plenty of time to revoke the claimant’s redundancy given that she had on her own behalf initiated an appeal.  Mrs Burns did not choose to do that.

 

91.      It is unclear why an employer in these circumstances would have proceeded with a redundancy.  In doing so, it was losing an experienced and trained employee with satisfactory service.  It was incurring liability for a statutory redundancy payment.  It was incurring the cost and disruption of a recruitment exercise for a replacement. 

 

92.      It is equally clear that Mrs Burns had never “reprofiled” the claimant’s salary in previous years. 

 

Funding

 

93.      At this stage it is probably worthwhile to set out the position for the financial year 2015/2016 as known at the date of the claimant’s redundancy.  That may involve some repetition but it might be clearer. 

 

94.      On 11 March 2015, the Community Foundation for Northern Ireland (Lottery Funding) confirmed funding at £3,500 “to the post of part-time advice worker and admin worker”.

 

            It is clear from the conditions relating to that grant that the grant could only be used for the purpose as detailed in the grant aid agreement i.e. for the post of part-time advice worker and admin worker.  There was no provision whatsoever for it not to be used, to be used for something else, or for “reprofiling”.

 

95.      The Belfast Regeneration Office of DSD confirmed in the letter of 26 March 2015 that funding would be offered for 2015/2016.  The letter of 26 March 2015 indicated that the contract for funding would issue shortly.  The respondent do not appear to have disclosed any further information in relation to that and we have not been drawn to any further documentation.

 

96.      The Flax Trust indicated by letter of 27 March 2015 that they would continue to fund the Community Development Post (Kevin McGarry’s post) for another year.  It also indicated that it was prepared to fill the gap in funding in relation to cross-community educational training.  The funding was confirmed for the additional post held by Amanda White i.e. part-time administrator/receptionist by letter of 19 May 2015. 

 

97.      The Belfast City Council indicated by letter of 2 April 2015 that funding had provisionally been recommended.  That is a matter which had been confirmed previously at the AGM.  It is clear from the wording of the documentation that the respondent was only permitted to use the funding for the purpose indicated and had no power to “reprofile” expenditure. 

 

98.      The Northern Ireland Housing Executive confirmed, by letter of 24 April 2015, financial assistance of £12,750 for salary costs.  Again there was no power to use that funding for anything other than the stated purpose. The precise stated purpose was not clear from the papers.

 

Appeal

 

99.      The claimant had not been invited to appeal against her redundancy.  There had been no attempt to follow the statutory procedure for dismissals or indeed to follow any fair process of redundancy selection. 

 

100.    The claimant instigated an appeal herself by a letter dated 24 March 2015. 

 

101.    By letter dated 8 April 2015 the claimant asked for a written explanation of the redundancy process and the reasons for her redundancy. 

 

102.    There was no record of any reply in these papers.

 

103.    On 24 April 2015 the claimant was invited to an appeal hearing on 22 May 2015, almost two months after her redundancy.  That appeal hearing was to be at the respondent’s offices.  That two month delay, in the context of a redundancy, seems odd. There was no particular evidence justifying this delay, other than a suggestion that Board members would have been busy. A genuine appeal would have been heard promptly.  This was not.

 

104.    By letter of 29 April 2015 the claimant stated that she found the venue inappropriate and asked for a hearing at a neutral venue.  She suggested the Vine Centre.  She also indicated that the date for hearing involved too long a wait.  She asked for it to be brought forward.  She asked for confirmation of who would be involved in the hearing.

 

105.    By letter of 8 May 2015 the Chairperson, Mr Frank McCorry, stated that they were unable to bring the appeal hearing forward and that the hearing would proceed at their offices.  He stated that members of the management committee would hear the appeal. 

 

106.    On 11 May 2015, by letter, the claimant stated that they had refused a reasonable request from herself and that she felt intimidated by the response and by the insistence that the hearing be held upon workplace premises. 

 

107.    On 21 May 2015, the three members of the appeal committee determined the appeal in the absence of the claimant.  They upheld the decision to terminate.

 

108.    By letter of 5 May 2015 the claimant stated that she was confused by the letter confirming the appeal outcome.  She stated that she had made a reasonable request for the appeal to be heard in a neutral venue and that there had been no reply to her letter of 11 May 2015.  She asked for an opportunity to discuss this in full in a neutral venue.

 

109.    By letter of 22 June 2015, Mr McCorry, refused that request.   

           

Advertisement of new post

 

110.    On 14 August 2015, the respondent advertised a post which would run only to 31 March 2016 at a considerably higher hourly rate - £9.50 per hour.  The advertisement is puzzling.  It stated that the post was funded by CFNI when it is clear on the evidence before us that it would not have been the case. That grant was for £3,500 only.  It did not refer to the Belfast City Council funding of £5,270 for the year commencing 1 April 2016 which was apparently confirmed at that stage. 

 

111.    The advertisement also required five years’ experience when the respondent knew that the claimant only had four years’ experience. 

 

The original post obtained by the claimant had also asked for five years experience.  That criterion had clearly been ignored when the claimant had been appointed. There was no convincing evidence that the criterion had been necessary or reasonable.

 

DECISION

 

Automatically Unfair Dismissal

 

112.    At the time of her dismissal, the claimant was a part-time employee with four complete years’ service.  Her employment should only have been terminated in accordance with the statutory procedure set out in Schedule 1 to the Employment (Northern Ireland) Order 2003.  It is also set out in Annex A to the Code of Practice on Disciplinary and Grievance Procedures issued by the Labour Relations Agency.  It is a procedure in common use, widely known and the type of procedure which would or should have been familiar to an advice centre.

 

113.    According to the Code, Step 1 of the statutory procedure requires that:

 

“The employer must set out in writing the employees alleged conduct or characteristics, or other circumstances, which lead him/her to contemplate dismissing______ the employee.”

 

The employer must send the statement or a copy of it to the employee and invite the employee to a meeting to discuss the matter.”

 

The respondent did not comply with that basic step and made no attempt to do so.

 

114.    Step 2 of the statutory procedure requires that:

 

“The meeting must take place before disciplinary action (or redundancy decision as the procedure applies expressly to redundancies) is taken, except in the case where the disciplinary action consists of a suspension – the meeting must not take place unless:

 

(i)        the employer has informed the employee what the basis was/is including in the statement under step 1 the ground or grounds given to it; and

 

(ii)       the employee has had a reasonable opportunity to consider their response to that information.

 

The employee must take all reasonable steps to attend the meeting.  After, the meeting, the employer must inform the employee of his/her decision and notify him/her of the right to appeal against the decision if he/she is not satisfied with it.”

 

There was no relevant meeting; there was no opportunity given at such a meeting for the claimant to make representations; there was no consideration of any such representations; no appeal was offered.

 

Again the respondent ignored the procedure completely despite its own resources and its ready access to, for example, the Vine Centre and the LRA.

 

115.    Step 3 of the procedure is described in the Code as:

 

“-    if the employee wishes to appeal, he/she must inform the employer.

-       if the employee informs the employer of his/her wish to appeal, the employer must invite him/her to attend a further meeting.

-       the employee must take all reasonable steps to attend the meeting

-       the appeal meeting need not take place before the dismissal or disciplinary action takes place

-       after the appeal meeting, the employer must inform the employee of his/her final decision.”

There had been no invitation to appeal.  The claimant had to initiate the appeal herself.  It is also clear that where the 2003 statute provides for an appeal, it impliedly provides for an effective and prompt appeal.  An inexplicable delay of two months renders the entire appeal process defective.  It is of little use to someone who has just lost their only job.  The request for a neutral venue does not appear to the tribunal to be significant.  The claimant wanted her job back in the same premises and while an appeal may have been uncomfortable for the claimant in those premises, the respondent was not obliged to provide an alternative. 

 

116.    The tribunal therefore concludes that the dismissal was automatically unfair.  That has implications for the remedy.  Since the parties have apparently agreed in the case management process that there will be a separate remedies hearing, those implications will be considered at that hearing.

 

Substantive Unfair Dismissal

 

117.    In respect of the above issue, the tribunal is conscious that it is not for the tribunal to determine whether redundancies in general, were justified.  As the respondent has indicated in its written submissions, that has been discussed widely in case law and is set out in paragraph 1652 to 1654 of Division D1 of Harvey.  It is not for the tribunal to reach its own conclusion, in respect of the particular claim, in relation to the economic viability of the respondent in March/April 2015 or to reach a conclusion on the proposition that redundancies in general were justified.

 

118.    That does not mean that the decision to select the claimant, and two others, for redundancy is outside the tribunal’s jurisdiction.  It is not.  Neither is it the case that small organisations, not for profit organisations, or any organisation whose management committee is staffed by volunteers is somehow exempt from employment law.

 

119.    There are three elements, in relation to the claim of substantive unfair dismissal (see Langston above).  Firstly, unfair selection; secondly lack of consultation. Thirdly, failure to seek alternative employment on the part of the employee.

 

120.    In relation to selection, the respondent organisation had funding difficulties.  Funds were not fully in place at the end of March 2015 to cover all employees and all expenses.  Three employees were selected, rather arbitrarily, by Mrs Burns to be made redundant.  They were the claimant, Amanda White and Karen Fox.  There was no formal selection process.  No criteria for selection were either discussed, agreed or applied.  The purported reasons for the selection of these three employees remain somewhat opaque.

 

121.    Mrs Burns, in her witness statement, asserted that in the closing remarks at the AGM on 19 February 2015, “all staff were on notice and would be receiving their P45s at the end of March if funding was not secured.”

 

            However “all staff” were not given their P45s.  Only three staff were given their P45s.  Two of those were retained as volunteers and then rehired.  Furthermore the general remarks now relied on by Mrs Burns refer simply to “funding” being “secured”.  It is not suggested by Mrs Burns that it meant “all funding” or that it meant “actually paid and in the bank” rather than “secured”.

 

122.    Mrs Burns does not put forward any suggestions that objective and clear criteria were used to select the claimant, and her two colleagues, for redundancy.  She states simply that “as of 27 March 2015 we did not have funding in place to finance the positions of Louise (the claimant), Amanda White and Karen Fox.”

 

123.    However it seems clear that the respondent did not feel bound to use its funding strictly and only for agreed purposes.  As the respondent states in its full submission;

         

“That monies from a funder can be re-profiled as long as they remain within the general heading of advice delivery.”

 

                        “That it is not correct to say that any funding obtained from BCC is ring-fenced in terms of a particular post or an individual’s job being specifically protected by the funding.”

 

                        “The claimants post was not ring-fenced to any particular funder.”

 

124.    The respondent cannot have it both ways.  It cannot argue that the situation in relation to particular funding streams in March 2015 made the selection of the claimant axiomatic, and then argue that her employment was not tied to any particular employment stream.

 

125.    Furthermore, it is clear that significant funding had been “secured” by 27 March 2015.  No one else had to be made redundant, or on the evidence before us, even had to have their hours reduced, or their salaries delayed.

 

126.    No convincing explanation has been advanced for the selection of the claimant and two others for redundancy in preference to anyone else.  The tribunal therefore concludes that the selection was unfair.  There was no evidence that it was the act of a reasonable employer.

 

127.    In relation to consultation there had been no effective consultation, either individually or collectively, in relation to the proposed redundancy of those three people.

 

128.    In relation to the consideration of alternative employment by the respondent, there was no such consideration.  Alternatives such as inviting a period of volunteering, reducing hours, delaying the payment of salaries, were not considered.  Crucially, although the respondent, without any apparent difficulties, agreed a brief period of volunteering with Amanda White and Karen Fox before rehiring them, the claimant was not asked to volunteer for a brief period before further funding was either secured or actually paid.  That is all the more startling because the claimant had already served as a volunteer.

 

129.    The tribunal therefore concludes that the dismissal of the claimant was substantively unfair.

 

Disability Discrimination

 

130.    The original claim was a claim of unfair dismissal only.  The exact terms of the amendment on 23 October 2015 to the claim form determine the extent of the tribunal’s jurisdiction.  As indicated above the amendment allows a claim of direct disability or disability-related discrimination in respect of the dismissal.  The amendment relies on “associative” disability.  It therefore included both direct and disability-related discrimination.  However, it was made clear in the course of the hearing and in the final submission that the claimant alleged only direct disability discrimination and that she was not alleging disability-related legislation. 

 

131.    Much of the evidence before the tribunal related to the claimant being sent home on 2 December 2014 and on 5 January 2015 and being denied the ability to work until 9 February 2015.  Further evidence related to the way the claimant had been treated on 1 December 2014, 2 December 2014, 5 January 2015 and on other dates preceding her dismissal.

 

132.    If the tribunal had jurisdiction to determine a claim of associative direct disability discrimination in relation to the two occasions on which the claimant had been sent home contrary to her wishes and without any medical or other justification, the tribunal would have found in her favour.  It was clear from the cross-examination of Mrs Burns that she had decided to send the claimant home on those two occasions for protracted period because of her daughter’s disability and not for any reason related to incapacity to work.  The claimant had been treated less favourably than another employee with a sick or distressed child would have been treated where that other employee’s child did not have a disability.  In terms of section 3A(5) of the 1995 Act, as interpreted in Coleman (above), the respondent organisation treated the primary carer of a disabled person less favourably than she had treated or would treat another employee who was not the primary carer of a disabled person whose relevant circumstances were not materially different from those of the primary carer of a disabled person. 

 

133.    It is clear that Mrs Burns took the view that the claimants place was not in the workplace; her place was with her daughter who was “her priority”.  That was a surprisingly paternalistic attitude for Mrs Burns to take.  The purpose of the 1995 Act is not to treat disabled people, or those who are the primary carers of disabled people, as charity cases.  The purpose of the legislation is to encourage and to enable their integration into the workplace.  While it may be that Mrs Burns felt she had been acting from the best of motives on those occasions, she had been unlawfully discriminating against the claimant in sending her home and in denying her the opportunity to work.

 

134.    The purpose of the 1995 Act was described by the EAT and its decision was upheld by the Court of Appeal (GB) in O’Hanlon –v- Revenue and Customs Commissioners [2007] ICR 1359.  The EAT stated:-

 

“69.     Second, as the tribunal pointed out, the purpose of this legislation is to assist the disabled to obtain employment and to integrate them into the workforce.  All the examples given in section 18B(3) are of this nature.  True, they are stated to be examples of reasonable adjustments only and are not to be taken as exhaustive of what might be reasonable in any particular case, but none of them suggests that it will ever be necessary simply to put more money into the wage packet of the disabled.  The Act is designed to recognise the dignity of the disabled and to require modifications which will enable them to play a full part in the world of work, important and laudable aims. It is not to treat them as objects of charity which, as the Tribunal pointed out, may in fact sometimes and for some people tend to act as a positive disincentive to return to work.”

 

The reference in that decision to “the disabled” can now be read, following the ECJ decision in Coleman (above) as including, in so far as claims of direct disability discrimination are concerned, references to the primary carers of disabled dependants.  While that decision specifically examined standard reductions in contractual sick pay after sick absences of six months or more, it highlighted a general point; namely that simply putting “money into the pocket of the disabled” is not the purpose of the legislation.  In the context of the present case, the fact that the claimant was paid for December 2014 and January 2015 does not rebut any suggestion of direct disability discrimination.  She was denied the opportunity to work during those periods; that is the point. 

 

135.    The tribunal’s jurisdiction in relation to disability discrimination is however limited by the terms of the amendment obtained by the claimant, even though she had been unrepresented at the time of the application to amend and at the time of the pre hearing review.  As pointed out earlier, no application was made by the Equality Commission to further amend the claim once they came on record. 

 

136.    Turning to the claim of unlawful direct discrimination in relation to the dismissal of the claimant, the shifting burden of proof is going to be crucial.

 

137.    There needs to be something more, on the evidence, than the mere possibility of unlawful discrimination (see Madarassy).  There needs to be something on which a reasonable tribunal can properly conclude or infer that there had been unlawful discrimination.  The Directive refers to facts from which discrimination can be “presumed”.  The tribunal must consider the purpose of the Directive and of the implementing domestic legislation.  There is rarely a ‘smoking gun’ or an admission of unlawful discrimination in these cases.   The purpose of the Directive was to shift the normal onus of proof on to the respondent once a prima facie case has been established.  The purpose of the Directive was not to simply replicate the pre-existing status quo where the onus of proof fell on the claimant.  In determining whether facts have been established from which an inference of unlawful discrimination could be drawn, the tribunal must at that preliminary stage disregard explanation from the respondent.  The onus of proof then moves to the respondent.

 

138.    The Court of Appeal (GB) in Deman (above) concluded that the “more”, in addition   to a simple difference in status and a difference in treatment, need not “be a great deal”.

 

139.    When analysing whether a prima facie case of unlawful discrimination has been established, the tribunal must focus on its task of determining whether or not there has been unlawful discrimination – (see Curley V Chief Constable [2009] NICA 8).  In Laing V Manchester City [2006] IRLA 748, the EAT stated:

 

         “There seems to be much confusion created by the decision in IGEN.  What must be borne in mind by a tribunal faced with a risk claim is that ultimately the issue is whether or not the employer has committed an act of [race] discrimination.  The shifting of the burden of proof simply recognises that there are problems of proof facing an employee which would be very difficult to overcome if the employee had at all stages to satisfy the tribunal on the balance of probabilities that certain treatment had been because of [race].”

 

140.    The facts of the current case are not such that the tribunal could properly sidestep the issue of a shifting burden of proof.  In Hewage –v- Grampian Health Board [2012] ICR 1054, Lord Hope approved the obiter comments of Underhill J. In Martin –v- Devonshire Solicitors [2011] ICR 352, para 39, that it is important not to make too much of the burden of proof provisions.  Lord Hope said [para 32];

 

                        “They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination.  But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence on way or another.”

 

          The present case is not one where positive findings on the issue of unlawful discrimination readily present themselves.   There is no avoiding it.  The issue of a potential shifting of the burden of proof requires “careful attention”.

 

141.    Council Directive 2000/78 stated in its preamble:

 

                        “(31) The rules on the burden of proof must be adapted where there is a prima facie case of discrimination and, for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought.”

 

142.    In Article 10 of the Directive:

 

                        “1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there had been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment”.

 

143.    Section 17A (1c) of the 1995 Act implemented that part of the Directive.

144.    So in a case of this type, where the evidence does not conclusively determine the matter one way or another the claimant is entitled to the benefit of the Directive and of S.17A (1c).  She must establish a prima facie case, or facts on which discrimination could reasonably be presumed.  She does not have to fully discharge the normal burden of proof on the balance or probabilities before the burden of proof shifts to the respondent.

 

145.    The claimant has established the following facts:

 

(i)        The claimant had been sent home for extended periods on two occasions by Mrs Burns because of her disabled daughter.  She had not asked for any extended leave on these occasions.  Even though she had been paid, she had been denied the opportunity to work.

 

(ii)       She had to insist on returning to work in February 2015.

 

(iii)      Mrs Burns felt the claimant’s priority was her disabled daughter and that despite her child care arrangements, the claimant should not return to work during these periods.

 

(iv)      The respondent’s response to discovery was reluctant, piecemeal and incomplete.  It cannot be explained away as simply a matter of disorganisation.  The respondent had been represented throughout by an experienced solicitor who had instructed counsel.

 

(v)       The claimant had been made redundant first.  That was clearly a deliberate act.  Mr McGarry had stated in his email to the accountant: “OK we will complete Maria first”.  The only two persons also made redundant were only redundant for a relatively brief period, were engaged as volunteers, were paid a small sum for volunteering and were then rehired.

 

(vi)      There had been significant funding secured or anticipated by the end of March 2015.  Part of that funding has historically and as a matter of fact related to the claimant’s post.

 

(vii)     There had been no consultation with the claimant.  No alternatives to redundancy had been considered.  Short-time, lay-offs or delayed salary payment had not been considered.

 

(viii)    No other candidates for redundancy had apparently been considered by the respondent.

 

(ix)      No selection criteria for redundancy had been applied or even considered by the respondent.

 

(x)       The redundancy decision was unprecedented even though funding in previous years had not always been in place by the end of March.  Mrs Burns had denied this had been the case.

 

(xi)      The redundancy decision was taken shortly after the exclusion of the claimant from the workplace during December 2014 and January 2015.

 

(xii)     The tribunal has found Mrs Burns, the decision-maker, to be evasive and unconvincing.  The reason or reasons why those three employees were selected for redundancy remains opaque.  

 

(xiii)    The statutory dismissal procedure had not been followed.  The appeal of the claimant, which she had to instigate herself, had been significantly delayed without any valid reason.

 

(xiv)    Mrs Burns did not rescind the redundancy once further funding had been secured.  She did not even raise that issue to the appeal panel.  She proceeded with a redundancy even though that would add significant costs to the respondent.

 

(xv)     The claimant’s post was re-advertised at fewer hours, at higher pay and required a period of experience that Mrs Burns knew the claimant did not have.  The fact that the period had previously been required when the claimant had been originally appointed is not a complete answer.  It simply demonstrates that it had not been required.

 

146.    The requirement for a prima facie case does not mean that the claimant must, at this stage, prove her claim of unlawful discrimination on the balance of probabilities.  If that were so, Article 10 of the Directive and Section 17A(1c) of the 1995 Act would be rendered nugatory.  The explanation of the respondent must be disregarded at this first stage of the two stage procedure.  On that basis, the case to be considered by the tribunal consists of a claimant who in the recent past had been sent home for extended periods because of her disabled daughter and not because of any medical need and not because of any request from the claimant.  Another employee who had a distressed but non-disabled child would not have been sent home for an extended period without proof of medical need and without a request from the employee.  The person who made the decision to send the claimant home and not to allow her to return to work was Mrs Burns.  Mrs Burns arranged for the claimants work to be covered by others.  She anticipated further difficulties with the claimant’s disabled daughter.   She then made a decision to make the claimant redundant first.  The decision was allegedly because of funding difficulties.  There was no consultation and no alternatives were considered.  No selection criteria or any clear method of selection was used.  There was no statutory procedure.  An appeal was not offered and, when requested, was significantly delayed.  Two other part-time employees were made redundant slightly later but were retained as volunteers with some payment; they were rehired after a relatively short period.  The funding issue had improved by the time of the delayed appeal.  The redundancy was not rescinded.  The claimant’s post was re-advertised as different hours and with a different salary.

 

147.    If this is not a case where the burden of proof should shift, no such case exists and the provisions of Article 10 of the Directive and Section 17A (1c) of the Act are of no effect at all and are a massive waste of everyone’s time.  The tribunal therefore concludes that the burden of proof has shifted.  The claimant has established a prima facie case that she had been directly discriminated against within the terms of the 1995 Act because she had been the primary carer of her disabled daughter.  It is now for the respondent to prove that there had been no direct (associative) disability discrimination in the decision to dismiss the claimant.

 

148.    The respondent did not put forward any convincing or coherent explanation for its decision; i.e. the decision of Mrs Burns, to make the claimant redundant.  No convincing reason has been put forward for its reason to avoid basic procedural requirements or for its decision not to consider obvious alternatives to redundancy.

 

149.    The background to the claimant’s redundancy, while it cannot on the basis of the limited amendment to the claim form, be a separate head of claim, is nevertheless significant.  The claimant’s presence at work had been actively discouraged.  Her work had been given to others.  When she had insisted on returning, her days were changed.  She was not informed of the AGM.  The evidence of Mrs Burns was clear.  She had sent the claimant home and had denied her the opportunity to work because of her disabled daughter.  While this may have been for the best of intentions, Mrs Burns was treating the claimant differently because of her daughter’s disability where she would not have treated another employee, with a non-disabled child, in the same way.  In Mrs Burns mind, because the claimant had a disabled child, her position was not properly in the workplace.  Her daughter was “her priority”.  That is not the legal position.  People who are disabled themselves, or who are the primary carer of a disabled person, have a right to work within the protection afforded by the 1995 Act.

 

           Mrs Burns’ attitude to the claimant’s position was profoundly wrong.  That was the immediate background to the redundancy.

 

150.    The respondent argued that the claim could not proceed because two other part-time workers were selected for redundancy in the same way as the claimant.  However they were not treated in the same way.  They were selected slightly later for redundancy.  They were retained as volunteers.  They received a small payment for volunteering.  They were rehired.

 

151.    There was no convincing explanation for the respondent’s attitude to discovery during this litigation.  It cannot be explained merely as the inevitable consequence of a “small, poorly run organisation.”  This was an advice centre which was part of a consortium of advice centres including the Citizens Advice Bureau.  It was also advised by an experienced solicitor and by counsel thereafter.  As the Court of Appeal (GB) indicated in Deman (above) an evasive reply can be significant.  At this stage, it requires explanation.

 

152.       The employees of the respondent made no adverse comments about the claimants’ disabled daughter.  However that in itself does not rebut a prima facie case of direct disability discrimination.  Such discrimination can be based, not just on malice, but on misplaced and inappropriate charitable intentions.  In this case, Ms Burns felt the claimant’s place was with her daughter and not at work.  The claimant had been sent home for extended periods for that reason.  While she had been paid she had been denied the opportunity to work and had been treated as an “object of charity” – see O’Hanlon above. 

 

153.    The tribunal concludes that the respondent has not rebutted the prima facie case established by the claimant and it has not discharged the onus of proof. 

 

154. The fact that the claimant raised complaints about the non-payment of minimum wage and the entitlement to a redundancy payment again do not rebut the prima facia case of direct disability discrimination.  It is not surprising that the claimant felt that the fact she raised these two issues had in some way further annoyed the respondent.

 

Remedy

 

155.    The tribunal notes that it was determined at a CMD that the issue of remedy in respect of any unlawful discrimination should be dealt with at a separate remedy hearing.

156.    It would be inappropriate to deal separately with remedy in relation to unfair dismissal.  All issues relating to remedy will therefore be dealt with at a separate one day remedy hearing.  A case management discussion (telephone) will be arranged shortly to list that remedy hearing.

 

157.    If an appeal to the Court of Appeal in relation to liability is contemplated in relation to this claim, it would seem appropriate for the remedy hearing to be heard and determined first and before any such appeal has to be lodged.  That would minimise the scope for ‘satellite litigation’ and would be in keeping with the overriding objective.  On that basis, the tribunal proposes April 5^th for that remedy hearing subject to discussion at the telephone Case Management Discussion.   

 

 

 

 

 

 

Vice President:

 

 

Date and place of hearing: 27-29 January 2016, Belfast

 

 

Date decision recorded in register and issued to parties: