Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 8847/03

CLAIMANT: Victoria Elizabeth Lowry

RESPONDENTS: 1. Bernard Sloan

2. Puma Consulting Limited

DECISION

The unanimous decision of the tribunal is that the claimant did not suffer unlawful discrimination on the grounds of her gender and she was not unfairly dismissed on the ground of pregnancy.

Appearances:

The claimant was represented by Mr R. Shields, Barrister-at-Law, instructed by McKenna Sweeney McKeown, Solicitors.

The respondents were represented by Mr Bernard Sloan of the second-named respondent.

The claimant claimed that she had been unlawfully discriminated against in that she was dismissed on the grounds of her pregnancy and this constituted unlawful discrimination on the ground of her sex and unfair dismissal on the ground of pregnancy. The respondents contended that the claimant was fairly dismissed because of her inability to perform the job for which she was recruited by the respondents. This was brought to the claimant's attention at the end of a three month appraisal period.

Analysis of Evidence

In general, the tribunal preferred the evidence given by and on behalf of the respondents. Although Mr Sloan did not perform especially well under cross-examination appearing at times somewhat confused in the evidence that he was giving to the tribunal, his evidence was corroborated by the evidence of Mr Robin Wilson and Mr Gavin Pickett. When the tribunal assessed the evidence given by the claimant, it was found to be less reliable than it initially appeared. The claimant presented to the tribunal as a person who had been economical with the truth in her dealings with her employer and this trait was carried forward into her evidence before the tribunal when she initially tried to suggest that she had only known about her pregnancy in June 2003, rather than in or around 16 April 2003. Furthermore, the tribunal did not find the claimant's evidence credible as she contended that she had to clean the toilets at the premises of the respondents, as she had been told allegedly by the cleaner that the cleaner only tackled the ground floor of the respondents' premises. As the claimant was unable to remember whether the cleaner was male or female, the tribunal regarded this as further evidence of her lack of credibility as a witness.

Facts Found

1. The claimant commenced employment with the second-named respondent in or around 16 April 2003 as a secretary/office administrator. The claimant carried out duties for the second-named respondent and also some duties in 2 other businesses owned by the first-named respondent.
2. The claimant's employment with the second-named respondent was subject to an initial 3 month trial period after which her performance was to be reviewed.
3. The intention of the first-named respondent in recruiting a secretary/office administrator was to alleviate his heavy workload by delegating tasks such as filing of invoices and preparation of wages to the person who would take up that job. The claimant had an induction into her duties and this induction was largely carried out in the Puma Consulting Limited Office and partly in the presence of Mr Gavin Pickett an engineer employed by the second-named respondent.
4. It was almost common case that the claimant was unable to take over the duties of Mr Sloan in respect of preparation of wages. The only dispute between the parties from this point was the shade of interpretation contended for by the claimant, as to why she was unable to carry out this duty.
5. Although the preparation of wages was the major area in which the claimant failed to perform satisfactorily, there were other areas in which the claimant's performance of her job was not satisfactory to the first-named respondent. These additional areas evolved around the double payment of certain invoices and failure to pay other invoices leading to complaints from creditors and mis-filing of invoices and delivery dockets.
6. The claimant did receive an induction into the nature of her duties and the first-named respondent would go through her mistakes with her trying to explain them and have them rectified. Mr Pickett and Mr Wilson confirmed that Mr Sloan did try to rectify and explain the mistakes in the presence of the claimant.
7. In or around the start of July 2003, the first-named respondent decided that he would inform the claimant that she was not going to be retained in his employment permanently as a result of her lack of performance in her job. The appraisal meeting took place on 21 July 2003 and after the claimant was informed that she would not be retained permanently in the job, she informed Mr Sloan, the first-named respondent that she was pregnant. This was the first occasion upon which the claimant had given any information about her pregnancy to her employer.
8. The claimant argued that the tribunal should draw an inference that her dismissal by the respondents was unfair on the grounds of her pregnancy and that this was unlawful discrimination on the ground of her sex. Although it was admitted by the claimant that she had not told her employer that she was pregnant, she contended that Mr Sloan and other persons working in Mr Sloan's building had constructive knowledge of that fact by reason of her weight gain and her frequent retching in bathrooms in the premises of the respondent. The claimant contended that the bathroom was close to the office occupied by Mr Sloan and Mr Pickett and the office doors were open. She also contended that she had suddenly gained an amount of weight. On this point, the tribunal preferred the evidence of Mr Pickett and Mr Sloan whose evidence each corroborated the others evidence. The bathroom that was part of the second-named respondent's office suite was not as close as contended by the claimant because there was a corridor and a 3 foot wall between the respective offices. Both Mr Pickett and Mr Sloan being engineers were frequently out on site and as the claimant on her own admission had purchased baggy clothing to camouflage her weight gain, the tribunal concludes that the scope for noticing the physical symptoms of the claimant was limited. The tribunal was further supported in reaching this conclusion by the evidence of Mr Robin Wilson who is the duty manager of the White Horse Inn which forms part of the business premises owned by Mr Bernard Sloan. His evidence which was not contested was that he saw the claimant on an average of 20 minutes per week thus adding strength to the conclusion that the scope for noticing her physical symptoms was limited in respect of all employees in the building. The claimant also contended that the number of doctor appointments that she attended during the period of her employment should have made the respondents aware that she was pregnant. However, the claimant did not take any steps to make it plain exactly why she was attending her doctor and the only physical symptom that she manifested of any problem related to cotton wool in her ears. When questioned she related this back to an earlier problem with her ears, although admitted that she would have discussed more than one issue with her doctor on each visit. On the one occasion that Mr Sloan noticed a physical symptom of sickness in the claimant and queried whether it was due to food poisoning, she informed him that her sickness was caused by a Chinese meal taken by both herself and her boyfriend. Furthermore, the claimant contended that because she reduced her holidays from 2 weeks to one week, this was another reason why Mr Sloan should have realised she was pregnant. As the reason given for this was related to the work commitments of her boyfriend, the tribunal does not accept this contention.
9. The final reason why the claimant contended that Mr Sloan would have constructive knowledge of her pregnancy was that she believed that he had over-heard a conversation at a fair in Saintfield in which the claimant was congratulated on the grounds of her pregnancy. As the witness called to corroborate the claimant's story of events in and around the fair failed to recognise Mr Sloan and could only state that she had been informed by the claimant of her concern that her employer had over-heard the congratulations offered to her, the tribunal does not regard this evidence as being of any objective assistance in supporting the contention of the claimant.
10. The tribunal was invited to draw an inference from Mr Sloan's failure on the part of himself and the second-named respondent to complete the statutory questionnaire. The tribunal accepts the explanation given by Mr Sloan that he believed that all paperwork had been completed by the solicitor who was then on record for him in the case, and did not realise that the questionnaire had not been dealt with.
11. The tribunal considered that it was appropriate to draw an inference that from her arrival into the second-named respondent's company and in her dealings with her co-employees and those in Mr Sloan's building with whom she came in contact, the claimant concealed her pregnancy from them. As such for all the reasons set out above, the tribunal does not draw the inference that Mr Sloan had constructive knowledge of the pregnancy of the claimant. The tribunal concluded that she was not discriminated against on the grounds of her sex or her pregnancy.

Applicable Law

12. The dismissal of a person on grounds of pregnancy is both automatically unfair for the purposes of the Employment (Northern Ireland) Order 1996 and constitutes Sex Discrimination contrary to the Sex Discrimination (Northern Ireland) Order 1976 without the need for a comparator.
13. The tribunal did not consider that the claimant in this case had been discriminated against on the grounds of her sex. The tribunal found that Mr Sloan's motivation in employing a secretary/office administrator (which was a new appointment in his business) was to reduce his workload. Mr Sloan's practice in reviewing the performance after 3 months was in keeping with his normal practice as Mr Pickett confirmed that he had also undergone such a review and continued to receive yearly reviews in his employment.
14. The law in respect of unfair dismissal is found in Article 130(2)(a) of the Employment Rights (Northern Ireland) Order 1996. The tribunal finds that the respondents dismissed the claimant on the grounds of her lack of ability to carry out the job for which she was recruited by the respondents and not on the grounds of her pregnancy.

Chairman:

Date and place of hearing: 20-21 June 2005, Belfast.

Date decision recorded in register and issued to parties: