FAIR EMPLOYMENT TRIBUNAL

CASE REF:	365/01 FET
                                                                                                                       2534/01

CLAIMANT:			Brian Anthony Gallagher                                		

RESPONDENT:		Savage & Whitten Wholesale 

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the tribunal has no jurisdiction to determine the claim of constructive unfair dismissal but has jurisdiction to determine the claim of religious discrimination.

Constitution of Tribunal:

Chairman:		Mr N Kelly (Chairman sitting alone)
	
Appearances:
The claimant was represented by Ms M Higgins QC instructed by Tiernans Solicitors

The respondent was represented by Mr M Robinson Barrister-at-Law, instructed by Brangam Bagnall Solicitors.

THE ISSUE

1.	This is a pre-hearing review before a chairman sitting alone under Rule 17 of Schedule 1 to the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005.  The issue listed for this review was whether the claimant was employed under a legal contract of employment.  The claimant alleges that he was constructively and unfairly dismissed and also that that he had been discriminated against on the ground of religious belief.  He alleges that part of his wages were paid in cash without statutory deductions.  The respondent denies that any such cash payments were made.  The following sub-issues therefore arise for determination;

 	(i)	Were cash payments made as alleged?

(ii) 	If so, what effect does that have on the jurisdiction of the tribunal in relation to firstly, the unfair dismissal claim and secondly, the religious discrimination claim?

(see paragraph 31 of the decision of the Court of Appeal in Colen v Cebrian (UK)   Ltd [2004] ICR 568.)

BACKGROUND

2.	The claimant started working for Newry Cash and Carry (“NCC”) in 1986 as an order assembler.  His evidence was that he was paid approximately £170 per week gross and that statutory deductions were made in full.  There was no documentary evidence to support the figure of £170 but Mr Norman Savage who at that time was Managing Director, stated in evidence that he thought the figure was “ about right “. I therefore conclude that the starting wage was £170.

3.	 NCC merged with J & D Whitten Ltd in July 2000 to form Savage & Whitten Wholesale Ltd, the respondent in the present case.  The claimant’s contract of employment transferred to the respondent under the Transfer of Undertakings (Protection of Employment) Regulations 1981 and continued until his resignation in June 2001.

CLAIMANT’S EVIDENCE

4.	 The claimant gave evidence on his own behalf. He called no other witnesses. His evidence was as follows;

Approximately two years after commencing work with NCC, a Stephen Campbell was appointed as floor manager and therefore was line manager of the order assemblers.  Mr Campbell asked him to be supervisor (an intermediate position between order assembler and floor manager) and he was offered £20 per week extra in cash with no deductions for this additional responsibility.  He accepted this although he wanted the additional £20 put through the books.  Mr Savage, the managing director knew of and approved this arrangement.  Approximately nine months later, after Mr Campbell had left, the claimant felt that he had acquired additional responsibilities and negotiated an additional £10 per week in cash from Mr Savage.  The £30 was given to him every week without deductions together with his payslip which showed the remainder of his wages which at this time were approximately £216 gross.  This latter figure increased annually in line with inflation.
NCC moved to new premises in 1997 and took on extra staff.  The claimant negotiated a further increase in the cash payment to £42 per week with Mr Savage.  The claimant offered to inform the wages clerk, Vera Wright, of the new figure.  Mr Savage told him not to do that and that he would from then on pay him the cash directly every month.  The claimant went each month to Mr Savage and he would pay him out of a briefcase, noting each payment in a black notebook.

After the merger in July 2000, he asked Mr Savage for another increase because of his increased responsibilities.  The weekly payment was increased to £52.  This amount was now paid to the claimant by Mr Richard Whitten the joint managing director of the respondent.  Mr Whitten gave him the cash out of a Quality Street tin 
which he kept on the floor behind his desk. That tin contained a large amount of cash.

The claimant was unhappy about being paid partly “off the books” because he felt that he was losing out in respect of overtime payments.  His overtime hourly rate was being reduced because his basic hourly rate on the payslip did not reflect his true hourly rate.

He gave his notice verbally to Mr Savage shortly before he left in June 2001 and told him that he wasn’t happy working for the respondent.  A lot was going on and his frequent complaints had not been addressed.  He did not say where he was going to work after he left.  He asked for an ex gratia payment to reflect his long service.  This was considered by Mr Savage but ultimately was refused.

He started work for a competitor immediately after leaving.

RESPONDENT’S EVIDENCE

5.	 The evidence for the respondent was given by Mr Savage, Mr Whitten and Mr James Noble the purchasing director.  Mr Savage and Mr Whitten denied that any cash payments had been made, as alleged, by either NCC or by the respondent.  Mr Noble was not aware of any such payments.  All denied that the claimant had complained during the course of his employment about his treatment other than in relation to his role after the merger and that issue had been resolved in his favour.  
Mr Savage stated that the claimant, when giving notice, had told him he simply wanted a change.  He had arranged some part time work with his brother-in-law and was going to train for his HGV licence.  No complaints were made and they parted on good terms.  It was only after the claimant had left that he found out that the claimant had started work for a competitor.  He had agreed to consider an ex gratia payment but had decided against a payment because the claimant started work for a competitor.

The claimant had attended a management course in the local further education college which had been paid for by the respondent.

The claimant’s duties included dealing with employment issues and informing new employees about company procedures.  He also dealt with customer queries and complaints and was responsible for the floor where orders were assembled.  His staff went up from eight to twelve after the merger in 2000.

Mr Whitten stated that he never would have kept cash in a tin in his office. His office was usually unlocked. He had spoken to the claimant shortly before he left and the claimant had confirmed that he had no grievance with the respondent company. The claimant was a line manager; however Mr Whitten did not accept that that fact necessarily merited a pay differential.

FIRST SUB-ISSUE

6.	There is a clear conflict of evidence.  The claimant says the cash payments were made.  The respondent says they were not made.

After carefully considering the evidence and observing the demeanour of the witnesses, I have concluded that the cash payments were in fact made as alleged by the claimant for the following reasons;

(i)	In the course of their evidence, Mr Savage and Mr Whitten sought to minimise the claimant’s supervisory or managerial role and suggested that this role did not mean that the claimant should have been paid any more than an order assembler. Mr Savage’s evidence included the following;

“It (the floor) was pretty easy to manage”
“The place runs itself “
(In response to the question, should a supervisor be paid more than order assemblers?)
“No” and “The assemblers took trollies around—Mr Gallagher just put them in order—for the most part just doing the function of an assembler- not a shirt and tie management role.”
“once a year he drew up tea break rotas”
“He gave new employees a handbook—not training—they had to read it themselves “
(In response to the question, what would happen if disciplinary action had to be taken against an order assembler?)—“Mr Gallagher would pick that up and it would be passed to me.”
Mr Whitten’s evidence included the following;
(In response to the question, should not the claimant’s responsibilities as a line manager have been reflected in an increase in pay?)—“everyone would have an argument but I wouldn’t accept that a supervisor would automatically get a big increase”
(In response to the question, was the claimant a line manager?)---“I suppose he was.”

Given the clear and uncontradicted evidence that the claimant was responsible for up to twelve employees on the floor, I found this attempt to downgrade his role unconvincing and at variance with the Replies furnished by the respondent on 24 May 2002.  These Replies described the claimant’s role as follows;

“—Responsible for goods inwards i.e the booking in and accepting of stock 
     into store.
 ---Responsible for floor staff i.e allocation of work, dealing with disciplinary        
      		    matters etc.
---Responsible for recruitment of floor staff and lorry helpers when 
    appropriate (including placement of job adverts, attending job interviews 
    and selection of suitable applicant.)
 		---Dealing with customer queries e.g delivery or order queries.
---Undertaking reach truck operations and supervising the re-stocking of 
    racking on warehouse floor.
    		---Responsible for supervision of checkout scanners “

(ii)	The claimant gave his evidence in a clear and consistent manner.  Further, he did not appear to me to be a man who would have assumed significant additional responsibilities and a supervisory role from 1989 to 2001 without recompense.

(iii) 	The claimant started work as an order assembler at £170 per week gross and fifteen years later, despite inflation increases and a significant increase in responsibility, was being paid (as far as the payslip disclosed) £248 per week gross.  It is in my opinion, highly improbable that fifteen years inflation increases plus that increase in responsibility resulted only in an increase of less than 50% and I therefore conclude that it is more likely than not that additional payments (not reflected on the payslip) were being made.

(iv) 	I can see no convincing reason why the claimant would have invented a detailed story which is potentially to his significant detriment.

SECOND SUB-ISSUE

7.	The issue of illegality and it’s effect on the jurisdiction of the tribunal has to be considered separately in relation to claims in contract (including unfair dismissal) and claims in tort (including statutory torts such as unlawful discrimination).

8.	The contract of employment was not illegal from it’s inception.  However, it began to be operated in an unlawful manner from 1989 or 1990 when the claimant first began to receive part of his wages “off the books “.

UNFAIR DISMISSAL CLAIM

9.	The question I have to consider in relation to the unfair dismissal claim is whether the claimant knew of and actively participated in the illegality---( see paragraphs 29 to 38 of Hall v Woolston Hall Leisure Ltd. [2000] IRLR 378).

10.	The claimant gave evidence that he was unhappy with the arrangement of cash payments from the start.  He did not suggest that this was because he was not paying enough income tax.  He stated that he felt he was losing out because his overtime rate was adversely affected by the arrangement.  I do not accept this evidence.  Even if the cash payment at the highest rate of £52 per week had been paid properly as part of his declared wage, his basic hourly rate would have increased by less than £1.50 and overtime rates by a proportionate amount.  Since the claimant stated in evidence that he generally only did one or two hours overtime per week, I do not see how the effect of the cash payments on his overtime rate could have been of particular concern to him.  Furthermore, since approximately 1997, the claimant had to approach Mr Savage and then Mr Whitten to collect the cash payment.  His taxed earnings were sent to him in the normal way.  The claimant was an experienced employee exercising a significant supervisory role; I do not believe he was forced into, or was an unwilling participant in the illegal arrangement.

I therefore conclude that the claimant actively and substantially participated in the illegality and that it would be contrary to public policy to allow him to enforce the contract in an unfair dismissal claim.  I therefore dismiss that claim for want of jurisdiction.

RELIGIOUS DISCRIMINATION CLAIM

11.	I will deal at this point with an argument raised by Ms Higgins QC on behalf of the claimant.  Ms Higgins argued that following the decision in Mangold v Helm [2006] All ER (EC) 383, I had to consider this issue in the light of the Framework Directive 2000/78/EC and that I was obliged to ensure that there was full protection against religious discrimination, setting aside any provision of domestic law which might restrict that protection, even though the transposition period for the Directive had not expired at the relevant time.

The Directive is dated 27 November 2000 and the United Kingdom opted for the additional transposition period which allowed it up to 2 December 2006 to complete implementation.  The facts of this case therefore partly post-date the entry into force of the Directive but, in their entirety, pre-date the expiry of the transposition period.
In Faulkner & others v BT PLC & others (3933/01), the tribunal held that, following Pfeiffer v Deutsches Rotes Kreuz Kreisverband Waldshut EV [2005] IRLR 137, the provisions of a Directive could only be relevant after the expiry of the transposition period.

The European Court of Justice however has stated in Mangold that;

“It is the responsibility of the national court to guarantee the full effectiveness of the general principle of non-discrimination in respect of age, setting aside any provision of national law which may conflict with Community law, even where the period prescribed for transposition of that Directive has not yet expired.”

In the later case of Adeneler v Ellinikos Organismos Galaktos (C-212/04), at paragraphs 121 and 122, the Court states that national courts  “must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by (the Directive).”  The Advocate General in Adeneler provided the following rationale;

“The fact that member states are given a period within which to transpose a directive and are therefore not obliged to adopt the laws, regulations or administrative procedures necessary for its transposition before the end of that period does not … mean that there is no obligation to interpret national law in conformity with the directive concerned from its entry into force.  The fact that a directive allows the national rule-making bodies a period for its transposition by no means signifies that the courts may also avail themselves of that transposition period.  On the contrary, the transposition period is introduced solely to take account of the technical difficulties involved in the rule-making process which can arise, for example, in the parliamentary legislative procedure or in negotiations between management and labour”. 

In the circumstances of the present case, I do not regard the doctrine of illegality as set out in domestic case law as liable to compromise, either seriously or at all, the effectiveness of the principle of non-discrimination set out in the Directive.

The Court of Appeal in Hall was aware of its obligation to interpret domestic law in the light of the wording and purpose of the Equal Treatment Directive (whose transposition period had expired) and the need to ensure that there was effective protection against discrimination [see paragraphs 18 to 26 of that decision] and the test set out by that court [see paragraph 48] in its view complied with that Directive.

I therefore propose to deal with this sub-issue as a question of domestic law only, in accordance with Hall. 

12.	The principles set out in paragraphs 39 to 49 of  Hall in relation to a claim of sex discrimination and applied in Vakante v Addley & Stanhope School [2004] 4 ALL ER 1056 in relation to a claim of race discrimination are equally applicable to the present  case.  In paragraph 42 of Hall, the Court of Appeal stated;

“It therefore follows that the correct approach of a tribunal in a sex discrimination case should be to consider whether the applicant’s claim arises out of or is so clearly connected or inextricably bound up or linked with the illegal conduct of the applicant that the court could not permit the applicant to recover compensation without appearing to condone that conduct.”

13.	The illegality in the present case relates only to the manner in which part of the claimant’s wages were paid.  The claimant’s allegations of discrimination relate to matters which appear to me to be entirely separate; i.e the way in which his management role was allegedly “undermined“ by the respondent.  I do not consider that allowing the claim of unlawful discrimination to proceed would create the impression that the tribunal condoned the illegality which related to the non-payment of income tax and national insurance contributions and therefore I conclude that the tribunal has jurisdiction to hear and determine that claim.

Chairman:

Date and place of hearing:	24 August 2006, Belfast.

Date decision recorded in register and issued to parties: