Fair Employment Tribunal Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIFET/2010/212_09FET.html
Cite as: [2010] NIFET 212_9FET, [2010] NIFET 212_09FET

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FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 212/09 FET

6967/09

CLAIMANT: Anna Elizabeth Yvonne Stirrup

RESPONDENT: Ufuoma Obahor t/a Summers Dry Cleaners

DECISION

The unanimous decision of the Tribunal is that:-

(i) the claimant’s claim of discrimination on the ground of religious belief be dismissed;

(ii) the respondent do pay to the claimant the sum of £2,087.17 in respect of unlawful deductions from her wages; and

(iii) that the respondent unlawfully discriminated against the claimant on the ground of her age, and that he pay to the claimant the sum of £3,780 by way of compensation.

Constitution of Tribunal:

Chairman: Mr D Buchanan

Members: Mrs J McCormick

Mr J Norney

Appearances:

The claimant was represented by Mr R Fee, Barrister-at-Law, instructed by Equality Commission for Northern Ireland.

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

1.	(i)	The claimant, in her claim form to the Tribunal, alleged that the respondent had discriminated against her on the grounds of both her age and religious belief, and had made unlawful deductions from her wages. These claims arose out of her employment with the respondent.

	(ii)	In order to determine these matters, we heard evidence from the claimant, Mrs Anna Stirrup, and from Mr Edward Strirrup, her husband, on her behalf. We also heard evidence from the respondent, Mr Obahor, and had regard to documentary evidence produced by the parties. We find the facts set out in the following paragraphs.

2.	(i)	The claimant has worked for the respondent from on or about 19 February 2007. She is employed by him at his place of business, Summers Dry Cleaners, in Cookstown. Effectively, she performs, or did perform, the duties of a shop manager, opening up and closing the shop, dealing with till receipts, money and dockets, and performing general duties in the shop, which mainly include dealing with customers. At the time she started work, there were two part-time employees in the shop. The claimant initially worked full-time, 42 hours per week.

	(ii)	The respondent was the claimant’s pastor in the Pentecostal Church. Her husband was the assistant pastor and she was the church treasurer. Her employment with the respondent came about when he approached her in January 2007 outside church one Sunday, and offered her a job. He knew that a previous period of temporary employment on the claimant’s part had recently come to an end. After some discussion, they agreed on the job, and that the claimant would work full-time hours. This was not the respondent’s preference, for his initial offer had been made on the basis of part-time working.

	(iii)	In February 2009 the respondent asked the claimant and her husband to put up their house as collateral to buy land at Moneymore. The land cost £150,000, and was for a new church. There is a difference in emphasis between the parties as to the nature of this request. The respondent stated that he was putting up some of his own money and was merely enquiring if the claimant and her husband wished to follow suit. According to the claimant, the respondent was insistent that she and her husband provide the financial guarantee he was seeking. What is clear, however, is that when the claimant and her husband refused to put up the money, relations between her and the respondent quickly deteriorated. According to the claimant, whose evidence we accept in these respects, he appeared to blame her for the decision not to put up the house as collateral on the basis that she had influenced her husband (whereas according to her it was a joint decision), he ignored her at work, when not ignoring her he criticised her work, he spoke and prayed in tongues at her, and treated her as an ‘evil’ person.

	(iv)	From 12 – 15 May 2009, the claimant was off work sick for four days. The respondent called at her home and told her that she was unreliable and could not be depended upon. He told her that at her age she should be slowing down and was too old to be working five days a week, and that at 50, she was ‘too old’.

	(v)	On or around 22 May 2009, the respondent had a further discussion with the claimant about her working hours and again made a remark about her being too old. He suggested that she work three days per week and that he could help her husband obtain part-time work as a taxi driver to make up the hours she was losing. Someone else would be employed in the shop for the other two days.

	(vi)	On or around 3 June 2009, two people came into the shop to enquire about a job that had been advertised in the job market. Subsequently, the respondent and his wife came to the claimant’s home and when challenged about the callers to the shop enquiring about a job, the respondent said that the claimant was not supposed to know about it, and told the claimant that she was tired and that at her age she should be thinking about slowing up.

	(vii)	There had also been discussions about the parlous financial state of the business. The claimant accepted that the business had declined, and was struggling to meet its debts. The respondent was being pursued by his creditors, among them the Revenue and Customs and the Rates Collection Agency. According to the respondent, Mr Stirrup, the claimant’s husband, told him to do whatever he needed to do to keep the business going.

	(viii)	On 24 July 2009, the respondent gave the claimant a contract for part-time hours (three days per week) and this arrangement took effect from 3 August 2009, and has continued to date. The claimant was still in the respondent’s employment at the time of the hearing, but was off work because of sickness absence.

3. The claimant’s claim for unlawful deductions from wages

(i) The respondent’s case is that the reduction in the claimant’s hours was a business decision, made necessary by the financial state of the business. He attempted to justify it by stating it was done with the claimant’s consent, which he inferred from the alleged remarks by the claimant’s husband referred to at Paragraph 2(vii) above. In evidence this became tied up with his suggestions that some aspects of the claimant’s work were unsatisfactory, but we are satisfied that this was a red herring with which we need not concern ourselves.

(ii) It is clear to us that the decision to cut the claimant’s hours was a unilateral variation of her contract of employment by the respondent. There was no agreement, express or implied, to this course of action by the claimant, nor did she authorise her husband to give any consent on her behalf. The alleged remarks by her husband, on which the respondent relies, were so general, imprecise, and vague that they could not constitute consent even if he were acting with her authority.

(iii) The claimant has claimed for financial loss from 3 August 2009 until 12 April 2009, the week before the hearing, and also for future financial loss.

Clearly, she initially refused to accept the reduction in hours and continued to work, but under protest. However, it seems to us that she cannot do this indefinitely, and indeed the time must come (if it has not already passed) when she must accept the respondent’s repudiation of her contract of employment and treat that contract as at an end, or else run the risk of waiving the breach.

We are prepared to accept, perhaps generously, that she hoped, up to the commencement of the proceedings, that the respondent might back down.

We therefore award her the sum of £2,087.17 ( which is agreed) in respect of unlawful deductions from her wages up to that date. However, we think any claim for future loss of earnings in these circumstances is misconceived, and make no order in respect of any such loss.

4. Alleged discrimination on the ground of religious belief

There is no evidence from which we can infer discrimination on this ground. It was suggested that the respondent’s conduct towards the claimant at work, particularly in praying in tongues, was offensive and intimidating.

We do not accept this. The claimant and the respondent had prayed in tongues at home and at church, and they had also prayed together in a normal way at work.

The fact that members of the same church fall out among themselves over the making of a loan to that church does not seem to us to raise any issue of religious discrimination.

5. Alleged discrimination on the ground of age

(i) We accept the claimant’s evidence that the respondent did make remarks about her age on at least three occasions. From her perception these remarks were hurtful and unwanted, and it was not unreasonable of her, in the circumstances, to have such a view of them. The respondent does not deny making remarks of this nature, but tries to explain them away as a joke. We find that explanation somewhat disingenuous. While not satisfied that the claimant’s age played a part in her reduction of hours – the reason for this was the respondent’s pique at the failure to provide collateral – it seems to us that the respondent did have a fixation with the claimant’s age which unfortunately led him to making ageist remarks directed against her.

(ii) The claimant’s claim under this heading of liability is for injury to feelings. She seeks damages in the middle band of the guidance given by the Court of Appeal in England and Wales in Vento v Chief Constable of West Yorkshire Police (No 2) [2003] ICR 318.

We are satisfied that the injury to the claimant’s feelings can be attributed to the respondent’s acts of harassment. We are further satisfied, however, that this case is in the lower band, having crossed the line, as it were, from insensitivity. As against that, there was a cumulative and ongoing aspect to the respondent’s conduct.

(iii) The claimant adduced no medical evidence before us. We have also noted that she has remained in the respondent’s employment.

We therefore consider an award of £3,500 appropriate. We award interest on this sum from the date of the last act of harassment to the date on which interest is calculated as the applicable rate of 8%, a period of approximately one year. We calculate interest at £280. The total award under this heading of claim is therefore £3,780.

6. This is a relevant decision for the purposes of the Fair Employment Tribunal (Interest) Order (Northern Ireland) 1995.

Chairman:

Date and place of hearing: 19 – 21 April 2010, Belfast

Date decision recorded in register and issued to parties:

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