Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 9589/03

APPLICANT: Cherri Comyns

RESPONDENT: Leeanoy Ltd t/a Video City

DECISION

The unanimous decision of the tribunal is that the applicant was not unfairly dismissed from her employment.

Appearances:

The applicant appeared in person and represented herself.

The respondent was represented by Mr Ivan McCombe, Managing Director of Leeanoy Limited.

THE ISSUE

The issue for the tribunal to decide was whether the applicant had been unfairly dismissed, contrary to Article 126 of the Employment Rights (Northern Ireland) Order 1996. The applicant also claimed that her dismissal was automatically unfair because she had been dismissed while on maternity leave contrary to Article 131 of the Employment Rights (Northern Ireland) Order 1996. The applicant clarified that her dismissal was the reason for her claim of sex discrimination as set out in the application to the Industrial Tribunal.

FACTS

The tribunal finds the following facts.

The applicant was employed by Leeanoy Limited as a part time assistant at the Video City store in Coleraine. On 16 June 2003 she went on maternity leave. She normally worked eight to twelve hours per week and had another full time job from which she received statutory maternity pay. Prior to going on maternity leave the applicant had discussed with her manager at Video City, Mrs Mullan, on a number of occasions that she intended to return to work at the end of her maternity leave. Because of the fact that she would be returning to her other employment also at the end of her maternity leave, it had been agreed that the applicant would not start work at Video City until after Christmas 2003 although strictly speaking her maternity leave would expire before Christmas.

On 19 September 2003 the applicant received a P45 from the respondent in the post. She subsequently telephoned the Area Manager, Colin Douglas, who said that he would check the situation and would ask Mrs Mullan to get back to the applicant. There were at least two telephone conversations between the applicant and Mrs Mullan. Mrs Mullan's evidence to the tribunal was that she had had a discussion with Mr Douglas about the matter and that he had indicated that he would get back to the applicant to confirm that her employment had not been terminated. The applicant however did not receive a phone call from Mr Douglas and there was a conflict of evidence between her and Mrs Mullan as to the assurances she had been given that she was still employed by Video City.

The respondent's evidence was that a new Office Administrator had been employed in September 2003. She had been trying to update records and had asked each Store Manager for details of the staff they had employed at that time because sometimes staff left work and the payroll was not updated to reflect this. Due to a misunderstanding Mrs Mullan sent a list of the staff then on the rota to work in September to the Office Administrator. As Ms Comyns was on maternity leave at the time she did not appear on this rota and the Office administrator wrongly assumed that the applicant had left the respondent's employment and sent out a P45.

On 10 December 2003, while the applicant was still on maternity leave, Mr McCombe, the Managing Director of Leeanoy Limited sent her a letter explaining the error, confirming that Ms Comyns was still in their employment and apologising for the error. The letter said in the third paragraph:

"I can only offer my sincere apology for the error and would welcome the opportunity to discuss when you would be available to return to work in January as you had intimated".

It was the applicant's evidence that she was so hurt and distressed at the way that this matter had been handled that she could not go back to work at Video City and considered that she had been dismissed by receipt of P45 in September 2003.

DECISION

The relevant law in this case is that Article 126(1) of the Employment Rights (Northern Ireland) Order 1996 which provides as follows:-

"An employee has the right not to be unfairly dismissed by his employer".

Also relevant is Article 131(1) of the same Order which provides:-

"An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –

………(b) her maternity leave period is ended by the dismissal and the reason (or, if more than one, the principal reason) for the dismissal is that she has given birth to a child or any reason connected with her having given birth to a child, ………"

A. Unfair dismissal

In order for the applicant to establish a case of unfair dismissal she must first show that she has been dismissed. In this particular case the only evidence of dismissal was in the form of the P45 which was sent to the applicant by the respondent. The applicant also made the case on her application to the Industrial Tribunal that a colleague had told her that Mrs Mullan had indicated that the applicant would not be able to return to her job some time in the summer of 2003. This colleague however did not appear to give evidence and when the matter was put to Mrs Mullan she indicated that her only conversation with this colleague had been to the effect that the applicant's return to work would be a matter for her once she had finished her maternity leave. The tribunal accepts the explanation given by the respondent for the clerical error in sending out the P45. The tribunal therefore does not accept that there was any intention on the part of the respondent to dismiss the applicant. The receipt of the P45, while itself an indication of termination of employment, was explained by the respondent's letter of 10 December 2003 which was clear and made a full apology for the distress caused by the error. It is unfortunate that there was such a long time lapse – almost two months – between the receipt of the P45 and the letter rectifying the situation. However Mr McCombe only became aware of the events which had occurred in September when he received the applicant's SD 74 Questionnaire early in December 2003.

There appears to have been a certain amount of confusion between Mr Douglas (who has since left the respondent's employment and was not available to give evidence) and Mrs Mullan as to who was to advise the applicant of the situation. It would appear from the applicant's evidence that she did not receive a clear response confirming that she was still employed and this lead to understandable distress and upset on her part, particularly since she had given birth to her son on

5 August 2004, less than five weeks before receiving the P45.

There is no doubt that prompt action on the part of the respondent to reassure the applicant that she had not been dismissed and that her job was still there for her would have obviated any difficulty.

In all the circumstances it was the finding of the tribunal that the applicant was not dismissed and therefore not unfairly dismissed.

B. Sex Discrimination

The applicant's claim of sex discrimination was grounded on her allegation that she had been dismissed while on maternity leave contrary to the provisions of Article 131 of the Employment Rights (Northern Ireland) Order 1996. In view of the tribunal's finding that the applicant was not dismissed it follows that she was not dismissed for the reason or the principal reason that she had given birth to a child. Applying the test in James –v- Eastleigh Borough Council [1990] IRLR 288 HL the question for the tribunal to decide is whether, but for her pregnancy and maternity leave, the applicant would have been treated as she was. The tribunal finds that the applicant would have been treated in the same way had she been absent for some other reason such as long term

sickness. In such a situation her name would not have appeared on the rota and the same clerical error would have occurred. The tribunal finds that the applicant did not suffer unlawful discrimination on the grounds of her gender or maternity. Accordingly the tribunal dismisses both of the applicant's claims.

Chairman:

Date and place of hearing: 20 January 2005, Limavady.

Date decision recorded in register and issued to parties: