Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2574/15

 

 

 

CLAIMANT: Leanne Hutchinson

 

 

RESPONDENT: Cova Bars Limited

 

 

 

DECISION

The unanimous decision of the tribunal is that:

 

1.             The claimant was unfairly dismissed by the respondent. The respondent is ordered to pay the claimant the sum of £12,644.00 by way of compensation for unfair dismissal.

 

2.             The respondent did not discriminate against the claimant on grounds of her sex and accordingly her claim of sex discrimination is dismissed.

 

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge McCaffrey

 

Members: Mr E Grant

Mr D I Atcheson

 

 

Appearances:

 

The claimant was represented by Mr T Caher of Campbell & Caher Solicitors.

 

The respondent was represented by Mr T Sheridan of Peninsula Business Services Ltd.

 

ISSUES

 

1.             The legal and factual issues in this case had previously been identified at a Case Management Discussion. However in the course of the hearing it became clear that the claimant's claim in relation to flexible working was not being actively pursued as the claimant agreed that she had been granted flexible working on return from maternity leave.

 

2.             The outstanding issues for determination by the tribunal were as follows:

 

(1) Whether the claimant was unfairly constructively dismissed by the respondent contrary to the provisions of the Employment Rights (Northern Ireland) Order 1996 as amended?

 

(2) Whether the claimant suffered unlawful discrimination on grounds of her sex, and specifically whether the claimant was less favourably treated on grounds of her sex when she resumed work following maternity leave in October 2015?

 

THE FACTS

 

3.             The tribunal heard evidence and received witness statements from the claimant, from Mr Ulick O'Donnell (the owner of the respondent company) and from Miss Deborah Halliday who had an accountancy and wages role for the respondent company. On the basis of the evidence heard and of the documents opened to us we make the following findings of relevant fact.

 

4.             The claimant was born on 2 July 1980 and had worked for the respondent company from December 2000 until her employment ended in October 2015. We deal below with the exact date of the ending of her employment.

 

5.             The claimant was employed as a chef and over time she received increases in her wages so that she was earning an hourly rate of £11.50 per hour at the time relevant for these proceedings. If she worked on Sundays, she received double time, namely £23.00 per hour.

 

6.             From 2012 there had also been a male chef named Derek working for the respondent. The claimant was aware that he was paid £10.00 per hour and also paid double time on Sundays. The claimant went on maternity leave in January 2015 and her baby was born on 17 January 2015. During the claimant's absence on maternity leave the respondent employed a further chef named Stephen who was paid £8.00 per hour and £10.00 per hour if he worked on Sundays.

 

7.             During her maternity leave the claimant contacted Miss Halliday and enquired about applying for tax credits. They had a further conversation regarding the fact that when the claimant returned to work, she would be claiming tax credit. It appeared that the claimant would be better off if she did not return to a full 40 hour week but instead worked 16 hours per week and claimed working tax credits. There was some discussion as to who had made this suggestion, but it was clear that Miss Halliday had advised the claimant (and indeed it was the case) that the claimant would financially be better off if she worked 16 hours per week and claimed working tax credits.

 

8.             At some point in July 2015 the claimant had a discussion with Mr O'Donnell about returning to work in October on reduced hours of 16 hours per week. The claimant had also applied for a childminding course and Mr O'Donnell had provided her a reference. Mr O'Donnell queried whether the claimant intended to return to work as a chef and the claimant explained that the childminding course was really as a backup and that she intended to return to work with the respondent.

 

9.             In September 2015 Mr O'Donnell rang the claimant to ask if she could help out as he was short staffed on 12 September. The claimant said she would try to arrange a babysitter and asked him if he had time to consider her request for a return to work on the basis of 16 hours per week. Mr O'Donnell confirmed that that would be acceptable and that they would "get something sorted". He then contacted the claimant again in relation to the shift which she worked actually on 11 September 2015 and she was paid her usual rate of £11.50 per hour for that shift. The claimant subsequently contacted Miss Halliday about her exact return date and agreed with Miss Halliday and Derek that she would return to work on the basis of initially using up holidays one day per week and working one day per week as well. The claimant resumed work on 6 October 2015. On 12 October she received a telephone call from Mr O'Donnell, advising her that he was going to reduce her wages to minimum wage and that her tax credits would make up the shortfall. When the claimant queried why this was being done, he indicated that her hours were reduced and she was not fulfilling the same role as before. He went on to say that the kitchen had changed. In cross examination Mr O'Donnell indicated that the duties of the chef's role had changed but in fact the only difference which he could point to was that the floor staff now organised their own rota. He suggested that ordering food and arranging the kitchen rota would be done by the head chef rather than by the claimant, but this was disputed by the claimant and on balance we find that there was no substantial change to the claimant's role which was not also experienced by the other chefs.

 

10.          During parts of this conversation on the phone the claimant could hear Miss Halliday speaking in the background. Miss Halliday came on the telephone, apologised for what Mr O'Donnell had just said to her and asked the claimant if she could come down to work that afternoon to talk to her. The claimant subsequently called at the respondent's premises. Mr O'Donnell was not there and she had a conversation with Miss Halliday. In cross examination, Miss Halliday was adamant that she could not agree anything in relation to anyone's terms and conditions of employment. She did however have a conversation with the claimant on 12 October, pointing out that the claimant was now earning more than the head chef and that she was not now fulfilling the same role as the chef. The claimant disputed this, pointing out that she was earning a higher hourly rate because she had been there for 15 years, had demonstrated competence and loyalty and had come in at short notice to cover when required. Miss Halliday disputed that the claimant would be carrying out the same role as before. She went on to tell the claimant that the business was now up for sale and that the claimant would be able to keep her job if she was earning less money with the new owners. Miss Halliday indicated in that conversation that she would speak to Mr O'Donnell about the matter if the claimant would agree to work for £8.00 per hour and £10.00 per hour on Sunday. Miss Halliday indicated that because the claimant was working part-time, they had to employ a new chef to make up the rest of her hours but the claimant pointed out that this was untrue. It was the claimant's assertion that the reason Stephen had been appointed was because two other staff had left in the meantime. The claimant explained that she was very unhappy with this proposal and asked if she came back full-time, would her wages be made up. Miss Halliday's answer was that her wages would still be dropped.

 

11. The claimant expressed in her witness statement her upset that her income was going to be taken away to the point that she could not manage to maintain her household and support her son. The claimant went to work as planned on Friday 16 October and received a telephone call from Mr O'Donnell on Monday 19 October asking her to call and see him the following day although she was not due to work. Mr O'Donnell was asked about the assertions made by the claimant in relation to agreeing part-time working and the discussion he had with the claimant on 20 October and he agreed that her evidence in this regard was correct. The claimant said that on 20 October, Mr O'Donnell asked if she would not accept £8.00 per hour and she told him that she would not. He then told the claimant that the business had actually been sold and that her wages of £11.50 per hour could jeopardise its sale of the business. He also said her position was different because he could not any longer ask the claimant to come round at short notice because she had to look after her son. The claimant said that she left this meeting feeling very depressed and upset. She went to work on 21 October as agreed. On or about 22 October there was a further telephone conversation between the claimant and Mr O'Donnell. Although the claimant's witness statement said that Mr O'Donnell telephoned her, both he and she agreed in oral evidence that the claimant had telephoned Mr O'Donnell. The claimant repeated that she was not happy with the position. The claimant's evidence to the tribunal was that she told Mr O'Donnell during that conversation that she was resigning and would be claiming constructive dismissal and sex discrimination. Mr O'Donnell was adamant that she had not used the word resign. Although he said he had asked her if she was resigning, she "never answered". Certainly the claimant did not indicate in her witness statement that she was resigning. Her evidence was that she responded to Mr O'Donnell's question about resignation by saying that she was applying for constructive dismissal and discrimination. Her claim form to the tribunal equally does not refer to her resigning.

 

12. On 23 October 2015 a letter was sent from solicitors acting for the claimant to the respondent. As that letter was relied on by the claimant as evidence of her resignation we quote it in full. It reads as follows:-

 

"Dear Mr O'Donnell

 

I act on behalf of Miss Leanne Hutchinson who has been in your employ for 16 years.

 

I am instructed that following her return from maternity leave and her request to have reduced hours you indicated that her pay off (sic) £11.50 per hour would be reduced to the minimum wage.

 

You indicated to her that if she failed to accept those new terms that that would be taken as a resignation.

 

I would advise you that such conduct is unlawful and will result in an application to the Industrial Tribunal for compensation for constructive dismissal and discrimination.

 

My client will allow you three days to reconsider your attitude failing which the appropriate application will be lodged with the Industrial Tribunal and Fair Employment Tribunal.

 

Yours sincerely"

 

The claimant did not return to work thereafter.

 

13. The respondent wrote to the claimant on 26 October 2015 in relation to her request for flexible working, inviting her to attend a meeting on 28 October 2015. The respondent also wrote to her on 29 October 2015 referring to her absence from work from 24 October 2015 and saying that the claimant had not been in touch to explain the reasons for her absence. They also referred to the respondent having attempted to contact the claimant on 26 and 28 October without success. The letter indicated that she had not given any explanation for her absence and that failing to notify the respondent of her reasons for her absence meant that they had no option but to consider disciplinary action against her. The claimant indicated that she had not replied to this correspondence because she considered that she had already resigned. The respondent said that they had sent these letters on the advice of their advisors Peninsula Business Services Ltd.

 

14. The claimant was paid for the hours she had worked up to 21 October at the rate of £11.50 per hour. Two of the payments due to her were made on 26 October (for week ending 20 October) and on 28 October (for the week ending 27 October). The respondent argued that this showed that the claimant had not suffered any loss and had in fact been paid at her normal contractual rate and had therefore not suffered any breach of contract. It was confirmed in evidence that the respondent company had been sold in early April 2016. The chef named Derek had left the respondent and Stephen was now being paid a flat rate of £8.00 per hour, according to Ms Halliday.

 

15. Following the termination of her employment with the respondent the claimant was in receipt of income support from 27 October 2015 until the date of the hearing at the rate of £74.00 per week. At the date of the hearing she had had one week's temporary work (the week before the hearing), when she worked 26 hours at the rate of £7.28 per hour. She had attended an interview for another job but at the time of the hearing had not been advised whether or not she had been successful in that application.

 

THE RELEVANT LAW

 

(A) Unfair Dismissal

 

16. The relevant law in relation to constructive dismissal is to be found in Article 127 of the Employment Rights (Northern Ireland) Order 1996 which provides as follows:-

 

"127(1) For the purpose of this part an employee is dismissed by his employer if ...

 

(c) The employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct."

 

17. Harvey on Industrial Relations and Employment Law ("Harvey") states at Division D1 paragraph 403 as follows:-

 

"In order for the employee to be able to claim constructive dismissal four conditions must be met:-

 

(1)       There must be a breach of contract by the employer. This may be an actual breach or an anticipatory breach.

 

(2)       That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. A genuine, albeit an erroneous, interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

 

(3)       He must leave in response to the breach and not for some other, unconnected, reason.

 

(4)       He must not delay too long in terminating the contract in response to the employer's breach, otherwise he will be deemed to have waived the breach and agreed to vary the contract.

 

18. Although constructive dismissals will often be unfair, the tribunal still has the obligation to assess the reason for dismissal and apply the normal tests of fairness, see Cawley v South Wales Electricity Board [1985] IRLR 89, EAT and Stephenson and Co (Oxford) Ltd v Austin [1990] ICR 609 EAT.

 

19. The conduct relied upon to constitute a breach of contract must be a repudiatory breach of contract not simply unreasonable behaviour on the part of the employer. In Brown v Merchant Ferries Ltd [1998] IRLR 682 NICA, the Court of Appeal in Northern Ireland indicated that, although the correct approach to constructive dismissal is to ask whether the employer was in breach of contract and not whether the employer acted unreasonably, if the employer's conduct is seriously unreasonable this may provide sufficient evidence that there has been a breach of contract.

 

20. The editors of Harvey note at Division D1 paragraph 425.01:

"Certain conduct will nearly always amount to a breach of contract. For example, if the employer:

 

·          unilaterally reduces the pay of the employee ( Industrial Rubber Products v Gillon [1977] IRLR 389);

 

·          unilaterally changes his job duties ( Coleman v S& W Baldwin [1977] IRLR 342, Genower v Ealing Hammersmith and Hounslow Gill Heath Authorities [1980] IRLR 297, Pederesen v Camden London Borough Council [1981] IRLR 173 CA ...

 

In those circumstances the employee may leave and it will amount to a constructive dismissal. The employer does not usually have the contractual right to do these things."

 

21. The case law also emphasises that the breach of contract complained of must be repudiatory in nature, that is, it must go to the heart of the contract between employer and employee and show that the party committing the breach no longer intends to be bound by the contract. It must be sufficiently important to justify the employee resigning or it must be the last in a series of incidents which justify his leaving.

 

22. The question also arises as to what happens if an employer has indicated a clear intention not to fulfil the terms of the contract in the future and the employee accepts that intention to commit a breach is bringing the contract to an end. It is clear that what is a repudiatory breach of contract depends on the facts in each case. In Financial Techniques  v Hughes [1981] IRLR 32, the Court of Appeal held that in that particular situation, matters had not reached a stage where the employer was unequivocally refusing to be bound by the contract and so they did not consider that his conduct was a repudiatory breach. There was a difference of opinion in that case between the employer and the employee as to the amount of a bonus to which the employee was entitled on leaving employment, but no final decision had been made by the employer as to whether or not he was willing to pay the amount claimed by the employee.

 

23. It is also significant that an employer will have the opportunity to change its position and withdraw the threat of a breach of contract at any time up until the employee accepts a repudiation. If an employee resigns after the employer has withdrawn his threat to breach the contract, there will be no constructive dismissal (see Harrison  v Norwest Holst Group Administration Ltd [1985] ICR 668.

 

24. By contrast if there has been an actual breach of contract, whether of an express or implied term of the contract, the Court of Appeal in England and Wales has found that once the breach has been committed, it is for the wronged party to decide how to respond. In Buckland  v Bournemouth University [2010] IRLR 445 CA, the Court of Appeal found that once a breach of contract had been committed, it was for the wronged party to decide how to respond:-

 

"The defaulting party cannot choose to retreat. What it can do is invite affirmation by making amends."

 

If the claimant rejects the offer, he or she can still resign and claim constructive dismissal. Sedley L J noted that employment law in this regard forms an integral part of the general law of contract where no doctrine of cure applies. He considered whether there was good and sufficient reason to introduce such a doctrine into employment law alone. While he could see the attraction of this, he ultimately rejected the idea saying:-

 

"Albeit with some reluctance, I accept that if we were to introduce into employment law the doctrine that a fundamental breach, if curable and if cured, takes away the innocent party's option of acceptance, it could only be on grounds that were capable of extension to other contracts and for reasons I have given I do not consider that we would be justified in doing it. This does not mean, however, that tribunals of fact cannot take a reasonably robust approach to affirmation; a wronged party, particularly if it fails to make its position entirely clear at the outset, cannot ordinarily expect to continue with the contract for very long without losing the option of termination, at least where the other party has offered to make suitable amends."

 

 

(B) Sex Discrimination

 

25. In relation to the claimant's claim of sex discrimination, protection against discrimination on grounds of pregnancy or maternity leave is contained in Article 5A of the Sex Discrimination (Northern Ireland) Order 1976 as amended ("the 1976 Order"). This provides as follows:-

 

"5A(1) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if -

 

(a) at a time in a protected period, and on the grounds of the woman's pregnancy, the person treats her less favourably that he would have treated her had she not become pregnant; or

 

(b) on the ground that the woman is exercising or seeking to exercise, or has exercised or sought to exercise, a statutory right to maternity leave, the person treats her less favourably than he would treat her if she was neither exercising nor seeking to exercise, and have neither exercised nor sought to exercise, such a right ...

 

(3) For the purposes of paragraph (1) -

 

(a) in relation to a woman, the protected period begins each time she becomes pregnant, and the protected period associated with any particular pregnancy of hers ends in accordance with the following rules ...

 

(iii) if she is not entitled to ordinary maternity leave in respect of the pregnancy, the protected period ends at the end of the two weeks beginning with the end of the pregnancy;"

 

26. It has long been established, since the seminal decisions of the European Court of Justice in Dekker and Herz, that discrimination on grounds of pregnancy must be sex discrimination, on the basis that only a woman can be pregnant.

 

27. Article 103, 104 and 105 of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") make provision for a person to be absent from work during maternity leave. The rules in relation to entitlement to maternity leave are set out in the Maternity and Parental Leave, etc Regulations (Northern Ireland) 1999. The right to return after additional maternity leave or parental leave is set out in Regulation 18 and provides amongst other things that an employee's right to return is to return:

 

" on terms and conditions as to remuneration not less favourable than those which would have been applicable to her had she not been absent from work at any time since

 

(i)            In the case of an employee returning from additional maternity leave (or parental leave taking immediately after additional maternity leave), the commencement of the ordinary maternity leave period which preceded her additional maternity leave period ..."

 

Regulation 18(5) also provides that the employee's seniority, pension rights and similar rights must remain as they would have been if the period of employment prior to additional maternity leave were continuous with her employment returning following return to work and "otherwise on terms and conditions not less favourable than those which would have been applicable to her had she not been absent from work after the end of her ordinary material leave period (as the case may be) during her period of parental leave." (see Regulation 18(5)(c).

By Regulation 19 an employee is entitled under Article 70C of the 1996 Order not to be subjected to any detriment by any act or deliberate failure to act by her employer done for any of the reasons specified in paragraph 2. Those reasons include the fact that the employee has taken, sought to take or availed herself of the benefits of ordinary maternity leave or additional maternity leave.

 

28. In this case, the claimant's case was that she had suffered discrimination on grounds of her sex because, when she returned from maternity leave, her terms and conditions of employment were altered and she claimed that she had suffered discrimination on grounds of her gender. Mr Caher did not elaborate in any detail on why he said that this should be the case; his case seemed to be that the claimant had suffered a change in her terms and conditions of employment on return from maternity leave; only a woman can be on maternity leave, therefore she had suffered discrimination on grounds of her gender. He did not refer us to the correct legislation and did not refer us to any case law on the subject.

 

29. Article 63A of the 1976 Order (as amended) sets out the legislation in relation to the burden of proof in sex discrimination cases. It provides as follows:-

 

"63A (1) This Article applies to any complaint presented under Article 63 to an Industrial Tribunal.

 

(2) where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent -

 

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part III, or

 

(b) is by virtue of Articles 42 or 43 to be treated as having committed such an act of discrimination against the complainant,

the tribunal should uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed, that act".

 

30. The burden of proof in discrimination cases has attracted considerable judicial comment. The guidance in Igen Ltd v Wong [2005] EWCA Civ 142 has been endorsed in a number of cases, including by the Northern Ireland Court of Appeal in the case of Arthur v Northern Ireland Housing Executive and SHL UK Ltd [2007] NICA 25. The claimant must first show facts from which the tribunal could, in the absence of an adequate explanation from the respondent, conclude that the respondent has committed an unlawful act of discrimination. Once the tribunal has so concluded, the burden of proof then shifts to the respondent to prove that he did not commit an unlawful act of discrimination. The burden of proof has been considered subsequently in a number of cases including Madarassy v Nomura International PLC [2007] IRLR 246. In that case, Lord Justice Mummery said:-

 

"The bare facts of the difference in status and the difference in treatment only indicate the possibility of discrimination. They are not, without more, sufficient material from which 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".

 

31. In Laing v Manchester City Council [2006] IRLR 748, Mr Justice Elias said:-

 

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

 

Although that case related to race discrimination, the same principles apply in relation to sex discrimination and pregnancy discrimination.

 

32. In Nelson v Newry and Mourne District Council [2009] NICA 24 Lord Justice Girvan, referring to the decision in Madarrasy added:-

 

"This approach makes it clear that the complainant's allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the claimant 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 ... 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 ".

 

33. We are also conscious of the judgment of Elias LJ in Laing (referred to above) in which it was noted that it was not obligatory for a tribunal to go through every step set out in Igen in each case. As was noted in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] NI146 by Lord Nicholl, sometimes the "less favourable treatment" issue can be resolved without, at the same time, deciding the "reason why" issue.

 

 

REASONS AND DECISION

 

(a)           Unfair Dismissal

 

34. The first issue which we have to consider is whether the claimant was constructively dismissed as she alleges. As we have set out above, in order to prove constructive dismissal, the claimant must show that there has been a breach of contract by the employer which may be an actual or anticipatory breach. The breach must be sufficiently important to justify the employee resigning or it must be the last of a series of incidents which justify his leaving; thirdly, the employee must leave in response to the breach and not for some other unconnected reason; fourth, the employee must not delay too long in terminating the contract in response to the employer's breach, otherwise he or she will be deemed to have waived the breach and agreed to vary the contract.

 

35. In this case the first issue to consider is whether there was a breach of contract, either actual or anticipatory. It is clear from the evidence before us and which was agreed by Mr O'Donnell, that the employer fully intended to reduce the claimant's rate of pay and to reduce it unilaterally. A reduction from £11.50 per hour to the minimum wage would have been a considerable reduction in the claimant's pay: it would have reduced it almost by half. In particular the proposed reduction of her overtime rate for Sundays would have had a significant impact on her income. The respondent attempted to argue that the claimant had not actually suffered this reduction in pay in that the claimant was actually paid at her contractual rate of £11.50 per hour for the work she did in the month of October 2015. While it is correct that she was paid at the proper rate, at least one payment was late as she was paid on 26 October for work done during the week ending 20 October. It is significant in our view that the claimant's discussions with Mr O'Donnell took place between 12 and 22 October. It is clear to us from the discussions which the claimant had with Mr O'Donnell and which he frankly admitted to being correct, that the employer had no intention of being bound by the contracted terms of pay to which the claimant was entitled. This is demonstrated by the initial telephone call on 12 October, when Mr O'Donnell told the claimant that she was having her pay reduced to the minimum wage and then by the subsequent discussion, when he attempted to impose an hourly rate of £8.00 per hour on the claimant and £10.00 per hour on Sundays. We are therefore satisfied that there was an anticipatory breach of contract and that the employer had indicated a clear intention not to fulfil the terms of the contract in the future. We note that there was a degree of pressure imposed on the claimant in that the respondent told her that a sale of the business had been agreed and that her rate of pay may endanger the sale. We also note that following the sale, Derek had left and Stephen, the remaining chef, was being paid at a flat rate of £8.00 per hour with no additional payment on Sundays. While we appreciate that the business had changed hands in the interim, this indicates a clear intention on the part of the employer not to be bound by the previous contractual rates, and we consider that the respondent's actions bear this out. While Mr Sheridan argued that the respondent had paid the claimant in full, and so they did, the final payments were only made after the claimant's resignation. We are left with the clear impression that this was done to try and retrieve the situation, and to "cure" the breach of contract. As Sedley LJ held in Buckland, this is not the respondent's choice, it is for the claimant to decide whether to affirm the breach or not.

 

36. The second question which arises is whether the claimant resigned. There was a lack of clarity in relation to this matter. We noted that in the claimant's oral evidence, she was adamant that she had told Mr O'Donnell that she was resigning and that she was claiming constructive dismissal and discrimination. She stated in her witness statement that Mr O'Donnell had asked her on a number of occasions if she was resigning and that she had told him that she was claiming constructive dismissal and discrimination, but she did not say in her witness statement (nor indeed in her claim form) that she had verbally resigned. We find as a fact that she did not tell Mr O'Donnell in that telephone conversation of 22 October that she was resigning. Mr Caher relied on the letter which he had sent on the claimant's behalf on 23 October 2015 and Mr Sheridan conceded that this was a letter of resignation. We do not agree. The content of that letter nowhere indicates that the claimant is resigning. It does say that Mr O'Donnell suggested to the claimant that if she failed to accept the new terms that would be taken as a resignation, but nowhere in that letter does it concede that the claimant is resigning. We note however that the claimant did not return to work after 22 October and it appears from the respondent's letter of 26 October 2015 that she was due to work on 24 October. We must take all of the circumstances of the case together in considering whether or not the claimant has resigned. In this case, taking together the conversation between the claimant and Mr O'Donnell on 22 October, the fact that the claimant then went and sought legal advice on foot of which a letter was written on her behalf and her decision not to return to work on 24 October 2015, we consider that all of these taken together constitute a resignation on her part on 24 October 2015 at the latest. (See Southern v Franks Charlesly and Company [1981] IRLR 278).

 

37. The next issue is whether the breach of contract concerned was repudiatory in nature. On the basis of the case law which we have set out above, we are satisfied that a unilateral variation in someone's pay constitutes a fundamental breach of contract. There was no evidence adduced before us to suggest that the employer had a contractual right to unilaterally vary the claimant's pay and it would surprise us very much if this were the case. Given that the change proposed by the employer would have reduced the claimant's pay by almost 50%, we consider that it would have been a fundamental breach of contract which the claimant was entitled to rely on as a repudiatory breach of contract.

 

38. The fourth issue is whether the claimant resigned in response to the breach of contract or for some other reason. We are satisfied, given the timing of her actions, that she resigned in response to the breach. We note that the respondent in its letter to the claimant indicated that she had been absent from work from 24 October. The claimant did not give any evidence as to when she was due to work again after 21 October, she simply said that her last day at work had been 21 October. Accepting the respondent's letter of 26 October as evidence on this point, we accept that she resigned with effect from 24 October 2015 at the latest and we find that she did not delay in resigning.

 

39. The final question which remains is whether the dismissal was unfair. The respondent has not adduced any evidence to indicate that the dismissal of the claimant was reasonable in all the circumstances, and accordingly it is our finding that the dismissal was unfair.

 

40. In light of this it is our finding that the claimant was unfairly dismissed, and we order the respondent to pay the claimant compensation as follows.

 

The claimant was aged 35 at the date of dismissal and had 14 complete years service with the respondent. Two of those years of service were under the age of 22. Her weekly pay when working for the respondent was £184.00 per week, both gross and net.

 

41. We ordered the respondent to pay to the claimant the following compensation in respect of unfair dismissal:-

 

Basic Award

 

£184 x 13 = £2,392.00

 

Compensatory Loss

 

The claimant was dismissed on 24 October 2015

and the hearing ended on 19 April 2016, a period

of 27 weeks.

 

£184 x 27 = £4,968.00

 

In relation to future loss, we are satisfied that the

claimant has made efforts to find alternative work

and that it is reasonable for her to seek work which

takes account of her childcare responsibilities.

Accordingly we consider it would be reasonable

to award her 6 months future loss as follows:

 

26 weeks x £184 = £4,784.00

 

Loss of Statutory Rights = £ 500.00

 

TOTAL £12,644.00

 

42. We were advised that the claimant was in receipt of income support at £109.19 from 27 October 2015 to date. The Employment Protection (Recoupment of Jobseekers Allowance and Income Support) Regulations (Northern Ireland) 1996 (as amended) apply in this case. The monetary award in this case is £12,644.00. The prescribed element is £4,968.00. The prescribed element is attributable to the period from 24 October 2015 to 19 April 2016. The monetary award exceeds prescribed element to by £7,676.00.

 

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

 

(b) Sex Discrimination

 

The claimant claimed that she had been discriminated against on grounds of her gender in that she had received less favourable treatment from the employer (i.e. a unilateral reduction in wages) because she had been off on maternity leave, and only a woman can be off on maternity leave.

 

43. The claimant however did not adduce evidence in our view which satisfied the test set out in Article 63A of the Sex Discrimination (Northern Ireland) Order 1976 (see paras 28 & 32 above). The claimant did not in our view prove facts from which the tribunal could conclude that the respondent had committed an act of discrimination against the complainant. She did not show that she had been treated less favourably than male colleagues nor did she actually demonstrate in our view that the reason why she had been treated as she was, was due to sex discrimination or pregnancy discrimination. It is for the claimant to prove her case and as was noted in Madarassy (see paragraph 29 above) a difference in status and difference in treatment will only indicate the possibility of discrimination. They are not without more sufficient material from which the tribunal "could conclude" that on the balance of probabilities that the respondent has committed an act of discrimination.

 

44. On the basis of all the information before us, it seems more likely that the reason the claimant was treated in the way that she was because she was already being paid considerably more than her male colleagues, and the respondent was seeking to reduce her pay in line with theirs to facilitate the sale of the business. The initial threat to reduce her pay to minimum wage indicated that she was being treated the same as a kitchen assistant, but the respondent then moved from this position and seemed to be offering her the same pay as Stephen, one of the other chefs. This was still a fundamental breach of contract as we have set out above. It is not clear to us however that this treatment was on the grounds of the claimant's sex or of her maternity leave. We are more persuaded that it was to do with the proposed sale of the business and the fact that the claimant's current pay was out of line of those of her colleagues. This is not a case where we believe that we can properly and fairly infer discrimination as set out in Laing (see para 30 above). While the employer in our view has behaved shabbily towards the claimant, he has given an adequate explanation as to why he behaved as he did and it was not connected with the claimant's gender or maternity leave: it was rather, connected with the proposed sale of the business. The claimant has failed to prove her claim of sex discrimination and so her claim must fail and is dismissed.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 18 and 19 April 2016, Belfast.

 

 

Date decision recorded in register and issued to parties: