Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1029/05

CLAIMANT: Roberta Bradley

RESPONDENT: Holland & Barrett Retail Ltd

DECISION

The unanimous decision of the tribunal is that the respondents unlawfully discriminated against the claimant on the grounds of her sex. The Tribunal orders the respondents to pay the claimant £8407.00.

Constitution of Tribunal:

Chairman: Ms Petra Sheils

Panel Members: Mr G Hunter

Mr J Hall

Appearances:

CLAIMANT: The claimant was represented by Miss Susanne Gallagher, instructed by Lara Mc Ilroy, Solicitors

RESPONDENT: The respondent was represented by Mr R Craddock, for Holland and Barrett Retail Ltd.

The Claim and the Defence

The claimant claimed that she has been less favourably treated on the grounds of her sex, contrary to the Sex Discrimination (Northern Ireland) Order 1976 in being dismissed by the respondents.

The respondent denied that they had discriminated against the claimant and contended that they had terminated the claimant's employment on the basis that she had failed to return to work without providing any reason and failing to observe the respondents' absence reporting absence procedure, that she failed to provide documentation to provide her legal entitlement to work in the United Kingdom and that she had not furnished satisfactory references.

Sources of Evidence

The claimant submitted one witness statement and was cross-examined by the respondents' representative.

The respondents submitted witness statements from Mr Gregor Caddies, Area Manager with Holland and Barrett with responsibility for the respondents' retail health stores in Northern Ireland and Mrs Diane Walsh, Personnel Manager.

The Tribunal was also given a bundle prepared by the respondents. There was a witness statement in the bundle from Ms Donna Galletly, Personnel Officer. However Miss Galletly did not appear at the hearing and the Tribunal indicated that it would not rely on that statement.

The Tribunal was also given a document prepared by the claimant's representative, entitled "Statement of Issues on behalf of the Claimant". However these were not agreed by the parties.

Submissions

The Tribunal heard submissions from both representatives.

Relevant Facts

The Tribunal read the documents, the witness statements and heard the cross-examination of the witnesses and on the balance of probabilities found the following facts:

1. The claimant commenced working for the respondents on the 9 May 2005. The claimant worked until the 10 June 2005 when she left the store and did not return.
2. The claimant responded to a job vacancy advertised in the Coleraine Job Centre placed by the respondents. The vacancy notice indicated that the job title was Supervisor-Retail, that the position was permanent and full-time, and that it would be paid at the rate of £4.10 to £4.85 per hour to start. The job vacancy notice also stated that the work time for the position was 26 hours per week and that the job duties would include the day to day running of the shop, key holding duties, staff supervision, merchandising and cash.
3. The claimant completed a job application form dated 18 April 2005. On the form in the box where the claimant indicated that she was applying for the position as Supervisor the word "temp" had been inserted, in brackets and in different handwriting. It was accepted that this had been done by the respondents on the claimant's application form.
4. In her application form the claimant had inserted the names of two referees. One was a Mr P Lewis whose address was given as c/o Southern Ocean Ltd, Warrenstown, County Cork and included a Republic of Ireland telephone number. However the claimant did not properly indicate on her form who Mr P Lewis was. It was agreed by the respondents that her application form was subsequently marked by the respondents with the words "Quay West", which corresponded to the name on the form of her most recent employer "Quay West" The Diamond Centre, Londonderry. The claimant also included the name of a second referee, Mr L Logan c/o PC World, Londonderry and included the Londonderry telephone number. It was agreed that the respondents later inserted on to the application form a different although incorrect address for Mr Logan as PC world, "Lisnelgeldin", Londonderry.
5. The claimant's application form indicated and it was accepted by her that she had worked in a number of senior positions in retail since 1998 and, apart from a brief period between August 2002 and October 2002, had always worked on a full-time basis.
6. The claimant was interviewed for the position by Mr Gregor Caddies, Area Manager, on Sunday 1 May 2005. There was considerable divergence between the parties in the evidence about the interview. It was agreed that at the interview Mr Caddies explained to the claimant the nature of the job and the nature of the respondents' specialist products. It was agreed that Mr Caddies had discussed the claimant's need for training on these products and on the company. It was also agreed that the claimant appreciated that the Supervisor's role was the next senior position in the Coleraine store and that the Supervisor would have to provide cover in the manager's absence.
7. However the extent of this cover was one of the disputed issues between the parties about the interview. The respondents contended that it was made clear to the claimant that this cover would include working the manager's hours. At first the claimant indicated to the Tribunal that she had understood she would have had to provide cover for the manager's absence but only within the limit of her own contracted 26 hours. The claimant then agreed that she had appreciated that the cover would include hours additional to her own contracted hours of 26 but she stated that she had understood that this would only be on a now and again basis.
8. It was also accepted by the claimant that she had agreed at interview that she would have to work additional hours in the first few weeks of the job to facilitate her training.
9. The second issue in dispute about what took place at the interview was in relation to the status of the position and its work hours. The respondents contended that Mr Caddies had advised the claimant during the interview that the position was temporary, that the Supervisor's position was under review as of 1 May 2005 and that he had applied to his boss for extra hours to extend the Supervisor's job from 26 hours to a full-time position. The claimant denied that any of this had been discussed at the interview.

Having read and heard all the evidence on this point the Tribunal concluded that the claimant had agreed at interview to work additional hours to cover for the absences of the manager when these arose and that she had worked additional and full time hours in the first weeks of her employment with the respondents to facilitate her training but that there was no evidence to suggest that the claimant had indicated that she would be prepared to work full time on a permanent basis.

Mr Caddies had no notes of the interview. He did not describe any reaction on the part of the claimant on allegedly hearing at interview that the position was now only temporary and likely to be full time. In light of the fact that the claimant had responded to a job vacancy for a permanent position of 26 working hours and claimant's consistent negative reaction to working full time, which was common case between the parties, the Tribunal would have thought that either the claimant would have registered, and Mr Caddies have noted, at least surprise at this change in the status and working hours of the position. No evidence was given to the Tribunal on which it could safely conclude that Mr Caddies had made either suggestion to the claimant. Accordingly the Tribunal accepted the claimant's evidence on what had transpired at interview.

The claimant commenced work on the 9 May 2005. The claimant was advised that the vacancy had arisen because the Store Manager was off on maternity leave and that the former Supervisor, Ms Kellie Hamill, who had been appointed in February 2005, had moved up into this position, leaving the Supervisor position vacant. Ms Hamill left the company a week after the claimant started work. The respondents contended that Kellie Hamill had been "Acting Manager" and that the claimant's position of Supervisor had been carried out previously by a Ms Alison Buckley.

10. Ms Kellie Hamill resigned in May 2005. The claimant stated that she had resigned after her first week of work. The claimant stated that she had been left to cope with all her own duties and those previously carried out by Ms Hamill. The claimant stated that she had felt under some pressure having to cope with so much in a new job and after only a week but that she had enjoyed the job and had been prepared to cope with this situation as well as coming to terms with her own role.
11. The respondents stated that Ms Hamill left their employ on the 20 May 2005 and took the 21 May as a day off in lieu. However although the respondents' witness, Mrs Walsh, indicated that she had noted this information from the Personnel records these were not before the Tribunal. Mrs Walsh also accepted that it was possible that Ms Hamill could have taken an additional period of leave before the 20 May 2005. Accordingly the Tribunal found on the evidence before it that Ms Hamill had left her post in the first week of May 2005 and that the position was as the claimant had described.
12. In the weeks after she commenced her position the claimant received a number of letters and documents from the respondents. The first of these was dated 10 May 2005 welcoming her to Holland and Barrett. It enclosed the respondent company's welcome pack and accompanying letter. It also included the respondent company's Staff Rules and Conditions of Employment.
13. The claimant also received a letter from the respondents dated 16 May 2005 advising her that she was required to prove her entitlement to work legally in the United Kingdom by producing either a British passport or a full birth certificate and a document showing her permanent national insurance number. This correspondence stated that if the claimant was not able to provide these documents "then consideration will be made as to whether your employment can continue".
14. The claimant received another letter from the respondents dated 18 May 2005 advising her that her application form had insufficient information on it concerning her previous employment history and that she had not provided reference details as requested. This correspondence stated that it was a condition of the claimant's employment to produce two satisfactory employment references and added that if the company did not received two satisfactory references her "employment with the company may not be confirmed". Accompanying this letter was a form requiring the claimant to complete the names, positions, company and addresses of two referees.
15. The claimant did not complete this form. The claimant stated that instead she contacted Personnel and spoke to a Miss Francine Hone about a number of issues including these letters, her references and the outstanding documentation. She identified her first named referee correctly so that the respondents could contact him. However the claimant stated that she believed that the respondents were reluctant to do so because he was at an address in the Republic of Ireland.
16. The Tribunal found that on the basis that the claimant's application form was amended to take account of the information that the claimant states she gave to Ms Hone that the claimant did supply sufficient information to Personnel in relation to her referees in the way she described.
17. The claimant also advised Miss Hone that she had brought the documentation required into work and that it was in the office of the Coleraine store. The claimant confirmed that she provided her birth certificate and national insurance number. The claimant stated that Ms Hone accepted that the claimant had brought the relevant documentation, her birth certificate and her national insurance confirmation, into the Coleraine store and had left it in the office. The Tribunal also noted that the Store Manager, whose job it was to attend to such paperwork, had left the store a week after the claimant started work.
18. The claimant's birth certificate and national insurance number confirmation letter were returned to the claimant by the respondents' Personnel department in England by letter dated 24 August 2005. The letter stated that the papers had been received by them from the Coleraine store on 15 August 2005. It was the respondents' case that these documents had been deposited in the Coleraine store on a date after the 14 June 2005. However there was no evidence from the respondents to support this and no explanation given as to how they had come to have these documents. In the absence of such evidence or any such explanation the Tribunal rejected this contention.

The claimant then received a letter from the respondents dated 24 May 2005 confirming their offer to her for the position of "Acting Supervisor" at the Coleraine store. This letter confirmed that the claimant's salary would be £5.30 per hour and that her contracted hours for the position would be 26 hours. The letter stated, under the heading "Duration", that "the appointment was being made due to the absence of a permanent member of staff on account of maternity leave".

19. This letter of the 24 May 2005 indicated that the respondents expected the claimant to complete the Induction Training Package within a month of commencing employment, the Retail Management Branch Training Programme within 6 weeks and the PKP within 6 months.
20. This letter also indicated that the offer it contained was made "subject to the receipt of two satisfactory references and the satisfactory completion of an initial trial period of at least three months". The letter did not refer to any outstanding documents required from the claimant to prove her entitlement to work legally in the United Kingdom.
21. The respondents contended that this letter supported their case that the Supervisor's position was temporary and ought to have alerted the claimant to this fact.
22. The claimant did not raise the contents of this letter with anyone. She remained of the view that her position was permanent and that the documentation had been provided.
23. However the Tribunal was satisfied that these words in this letter, even though they came under the heading "Duration", were not sufficient to alert the claimant to the new temporary nature of the position or that they were intended to do so. The Tribunal reached this conclusion on the basis that the Job Vacancy Notice had specifically stated that the position was permanent and that the Tribunal concluded that Mr Caddies had not discussed the temporary/permanent status of the position at interview and on later evidence from the respondents' witness that the position of supervisor remained in existence after the claimant had left, albeit that it was ultimately made a full time position.
24. The claimant completed the Induction Test when she had been in her position two weeks. She stated that she was told by Mr Caddies that she had achieved an excellent result and was congratulated by some of her colleagues in the store for having done so. The claimant was delighted with this as she had worked hard at the job and loved it. The claimant included reference to this successful test result in her witness statement so that it had come as a complete surprise to her on the morning of this hearing to see in the documents provided by the respondents that her test score had been 82, that the pass mark was 85 and that she had failed the test. The respondents relied on a spreadsheet which illustrated the claimant's mark and those of other staff which demonstrated that the respondents had recorded that the claimant's mark had been 82 and that the pass mark was 85.
25. The Tribunal noted that the claimant had completed this induction test within two weeks of commencing her employment. She had worked on a full time basis to facilitate her training into the company's way of working and on its products and she stated that she worked on this at home in the evenings too. In that same period of time the Store Manager left and the claimant had had to cope with the responsibilities of that post as well as her own. The claimant scored 82 which was 3 marks below the pass mark.
26. The Tribunal also noted that the respondents accepted that this was the first time that the claimant had been given her mark and the first time she had been told that she had failed the test. There was also no evidence before the Tribunal that the respondents had ever expressed, either in writing or orally, any concern to the claimant about her score before this hearing. There was no reference to any concern about the claimant's performance in this test or her failed score in any letter from the respondents regarding the termination of her employment. Accordingly the Tribunal accepted the claimant's evidence that she had been told that she had obtained an excellent result in this induction test.
27. The claimant stated that shortly after she commenced her employment Mr Caddies told her that he wanted to her to increase her working hours. It was common case that Mr Caddies raised this with her on each of the occasions he spoke to her during her weeks of employment. It was also common case that the claimant never agreed to work full time in response to these requests or at all. Mr Caddies rang the claimant on one such occasion and told her that the Coleraine store now required a full time supervisor.
28. The claimant stated that she continually felt under pressure from these conversations and demands on her to work full time. The claimant told Mr Caddies that while she would be willing to work additional hours to complete her training and to provide cover for the Manager from time to time she would not be willing to work full time because of her need to be at home with her child. The claimant stated that his repeated requests to her put her under pressure and caused her distress and upset.
29. The respondents' case at the hearing was that the claimant had "bitten off more that she could chew" and left because she could not cope with the job. The Tribunal noted that this case had not previously been stated by the respondents in their response to the claim or in any of their witness statements. The Tribunal also noted that there was no evidence that the claimant had been unable to cope with her job and that there was in contrast evidence from the claimant that she loved her job, had risen to cope with the demands of it, of the training and of the additional responsibilities resultant from Ms Hamill's departure. The Tribunal also noted the number of occasions the respondents sought to have the claimant continue her job and indeed to have her do so on a full time basis.
30. There was considerable divergence in the evidence of the parties about the circumstances of the 10 June 2005, the claimant's last day. The claimant stated that on the 10 June 2005 she noticed that she had been put on the work rota for the incoming period for 38.75 hours. She rang Mr Caddies immediately and told him that she would not be able to do this. The claimant stated that Mr Caddies had told her that if she could not do so she no longer had a job with the respondents and that she could return her keys to Ms Roisin Carlin at the end of the day. The claimant left her job believing that she had been given an ultimatum with which she could not comply. The claimant did not return.
31. The respondents accepted that Mr Caddies rang the claimant and advised her that he was making the Supervisor's position a full time position and that he wanted her to consider taking it. Mr Caddies accepted that in that conversation the claimant had refused the full time position but in evidence Mr Caddies stated that he had given the claimant a "cooling off" period as he was still hopeful that she would change her mind.
32. Mr Caddies sent an e mail to Personnel that evening at 17.25pm and advised them of this development. The e-mail stated that the claimant had been offered the temporary position of supervisor on a 26 hours basis to cover the Manager's maternity leave but that as the acting manager had left the position of full time Supervisor was now available. The e-mail did say that the claimant had "been saying for a couple of weeks that she will not want to do more than 26 hrs due to her child care arrangements and not wanting to work full time". The e-mail also stated that the temporary position was no longer available "as the business requires ft (full time) supervisor. This position has been offered to Roberta (the claimant) but she has declined". The e mail also stated that Mr Caddies had considered if there were other suitable 10 hours part time associate positions for the claimant but none was available. There was no reference in the e mail to any cooling off period.
33. The claimant received a letter from the respondents dated 14 June 2005. This letter indicated that her employment with the company had been terminated with effect from 10 June 2005. This letter stated that this was on the basis that the claimant had been absent from work since Friday 10 June 2005 without proper notification or medical certification. The letter went on to say that the claimant had also failed to provide documentation proving her entitlement to work in the United Kingdom and had not provided the respondents with sufficient information about her referees. The letter concluded that in view of these facts and on the basis that the claimant had yet to complete her initial three month trial period that her employment with the company was terminated on 10 June 2005.
34. The claimant wrote to the respondents on the 10 June 2005 and stated that she had taken advice from the Equality Commission. The claimant alleged that she had been discriminated against on grounds of her sex and family status. She stated that she had been put under constant pressure since taking up her position to work increased hours. The claimant stated that she had been told to work 38.75 hours and when she refused to do so she was told to return her keys. The claimant asked that the respondents treat her letter as a complaint and to reply to her.
35. The respondents replied by letter dated 16 June 2005 and stated that her complaint would be "thoroughly investigated".
36. The claimant again wrote to the respondents on the 15 June 2005 lodging her complaint under the Statutory Grievance Procedure, again alleging sex discrimination and asking the respondents for a written reply.
37. The claimant received a letter from the respondents dated 8 July 2005 terminating her employment. The letter advised the claimant that all respondents' employees are required to produce documentation to prove that they are legally entitled to work in the United Kingdom, that they are subject to a three month trial period and on condition the Company receives two satisfactory references. The letter went on to refer to the correspondence the respondents had sent to the claimant (16 and 18 May 2005) in relation to the fact that they were not in receipt of (the) relevant documentation and stated "it is for these reasons that the Company could no longer continue to employ you".
38. The Tribunal noted that the letter did not refer to any investigation conducted by the respondents nor did it make any reference to the claimant's having been absent from work without medical certification or without adherence to the company absence procedures.
39. The Tribunal did not accept that the reasons given by the respondents were the reasons for terminating her employment. The Tribunal noted that the reasons for terminating the claimant's employment were not consistent throughout its correspondence to her. The Tribunal also took account of the fact that there was no evidence of any proper investigation into the incident and that there was no reference to any investigation having been carried out in line with the company's own assurance to the claimant that this would happen.
40. The Tribunal noted that although the respondents did ask the claimant on a number of occasions to provided requisite documentation and details these requests were contained in respondents' correspondence welcoming the claimant to the company and appointing her to the position. The Tribunal accepts that it was the company's policy to have the requisite information and documentation but that this was an administrative requirement. The Tribunal accepts that the claimant had provided details to Personnel regarding her referees, as her application form was amended by the respondents to reflect and that she had left her other documentation at the Coleraine store.
41. The Tribunal noted the evidence of Mrs Walsh who told the Tribunal that, after the claimant left her position as part time Supervisor, the position of Supervisor had become a full time position. Mrs Walsh told the Tribunal that if the claimant had still been in her part time position and had refused the full time position she would have been made redundant.

The Law

The Legislation

The relevant law in this case is contained in the sex discrimination Northern Ireland Order 1976, the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 and relevant case law.

Articles 3 of the Sex Discrimination Northern Ireland Order 1976 as amended by the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 provides

"in any circumstances relevant for the purposes of the position to which paragraph applies, a person discriminates against a women if –

(a) he applies to her a provision, criterion or practice which he applies or would equally to a man but

(i) which is such that it would be to the detriment of a considerably large proportion of women than men;

(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied;

(iii) which is to her detriment.

Article 8 (ii) of the Order provides;

(ii) It is unlawful for a person, in the case of a women employed by him at an establishment in Northern Ireland to discriminate against her –

(a) In the way he affords her access to the opportunities for promotion transfer or training or to any other benefits, facilities or services by refusing or deliberately omitting to afford her access to them; or

(b) By dismissing her, or subjecting her to any other detriment.

The Burden of Proof

The Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 inserts a new Article 63A into the Sex Discrimination Northern Ireland Order 1976:

Article 63A provides Burden of Proof: Industrial Tribunals

This Article applies to any complaint presented under Article 63 to an Industrial Tribunal

(i) 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 a complainant which is unlawful by virtue of part 3 or (b) is by virtue of Article 42 or 43 to be treated as committing such an act of discrimination against the complainant;

(ii) The tribunal shall uphold the complainant 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.

Case Law

The last piece of legislation cited is known as the reversal of the burden of proof. The Tribunal has relied on the guidance by Lord Justice Peter Gibson in Igen Ltd and others v Wong (2005) IRLR 258 which clearly sets out the process by which the tribunal approaches this reversal of proof. This is a two stage process where the claimant must prove facts from which the Tribunal could conclude there had been unlawful discrimination and if, or when, this is done, the burden of proof shifts from the claimant onto the respondents. They must then show that they did not commit the unlawful discrimination and that the treatment by him of the claimant was not related to her sex.

In particular the Tribunal considered the Court of Appeal's guidance for the operation of this process and has set it out fully to show the steps this Tribunal took in applying the law to the facts found in this case:-

Pursuant to s 63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Pt II or which by virtue of s 41 or s 42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as 'such facts'.

If the claimant does not prove such facts he or she will fail.

It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that 'he or she would not have fitted in'.

In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.

It is important to note the word 'could' in s 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.

These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s 74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within s 74(2) of the SDA.

Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to s 56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent.

It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive.

That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.

The Tribunal's Conclusions

The Tribunal has considered the evidence and the facts found and concluded that the claimant had established a number of facts from which the Tribunal could draw an inference that she had been discriminated against on the grounds of her sex, in the absence of any or any adequate explanation from the respondents that was not related to the sex of the claimant.

The position as advertised was a permanent position of Supervisor who's contracted working hours would be 26 hours per week. The claimant applied for and was successful in securing this position. There was no suggestion at interview that this position was temporary or that it might become a full time position.

The claimant worked hard and was a willing and co-operative worker who worked additional hours to facilitate her training and who was prepared to provide cover for the Manager's absences as and when they arose. The claimant was consistent throughout the recruitment process, her employment and the preparation for and at this hearing that she did not wish to work full time on the basis of her child care difficulties.

The respondents put the claimant under pressure to work full time throughout her short period of employment and eventually gave her an ultimatum that if she did not work the full week's rota hours that she could return her keys and leave.

The respondents indicated that if the claimant had remained in her part time position and continued to refuse to work the full time hours that they would have made her redundant.

The Tribunal concluded that the respondents' insistence that the claimant work full time hours in a position they had advertised as and recruited for on the basis that it was a 26 hour position was a criterion that they applied to the claimant. This criterion became so important to the respondents for the position of Supervisor that they imposed it on the claimant in the form of an ultimatum and told her to leave if she did not fulfil it. The respondents also made it clear that a full time position of Supervisor had since been created and that if the claimant had not been able to meet the full time criterion for the position she would have been made redundant.

The respondents stated that the deployment needs of the Coleraine store required a full time Supervisor. However there was no independent evidence given by the respondents to prove this and the Tribunal was unhappy to accept this statement without it. In any event the Tribunal did not accept that this was or would have been an explanation that was unrelated to the claimant's sex. This is on the basis that the Tribunal took into account that the greater number of part time workers is likely to be female, and particularly so in retail, and that therefore this criterion is more likely to be to the detriment of a higher proportion of female workers.

The claimant's inability to meet the criterion to work full time was clearly to her detriment in that she was told to leave her job. The claimant also suffered a detriment in that she was put under pressure from the respondents to work on a full time basis pressure upset her and caused her distress.

Accordingly the Tribunal finds that the respondents discriminated against the claimant on the grounds of her sex.

Remedy

Article 65 of the Sex Discrimination (Northern Ireland) Order 1976 provides that, where a tribunal finds that a complaint made under the provisions of Article 63 of the Order is well-founded, that tribunal can make such order for remedy as prescribed as that tribunal considers just and equitable. In this case the issue of remedy related only to compensation. The Tribunal was given a schedule of loss prepared by the claimant stating that her actual loss from the date of her dismissal on the 10 June 2006 until she obtained other employment on 10 October 2006 was £2364.70. This figure was not disputed by the respondents.

The Tribunal considered the issue of injury to feelings and case law in relation to the level of an award under this head. In particular the Tribunal considered the case of Vento v Chief Constable of West Yorkshire Police (No.2) [2003] IRLR.

The claimant's evidence was that she had felt under pressure from the respondents throughout her employment with them and it was clear that she had an anxiety about the respondents' intentions towards her in that she had contacted the Equality Commission for advice before she was ultimately dismissed. This pressure culminated in her being given an ultimatum the result of which was that the claimant lost a job she had found interesting and at which she had striven to do well for the respondents.

However on balance the Tribunal decided that the award for injury to feelings in this case should fall into the "lower band" of such awards.

The Tribunal considered the issue of interest under the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 and decided that interest should be awarded. Accordingly, the Tribunal awards the claimant the sum of £5,000 in respect of compensation for injury to feelings, plus interest. This amounts to interest at 8% from the 10 June 2005 until 18 September 2007 = £909.58 total = £5909.58.

Additionally and in accordance with those Regulations the Tribunal awards interest on the sum awarded in respect of the claimant's actual loss. This is interest on the sum of £2,364.70 from the relevant statutory calculation point, the "mid-way point" between 10 June 2005 and 18 September 2007 which the Tribunal calculates as being interest at 8% from 19 February 2006 = £132, total = £2497.00.

Award in total is therefore and the Tribunal orders the respondents to pay the claimant the total sum of £8406.58, £8407.00 to the nearest pound.

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

Chairman:

Date and place of hearing: 8-9 May 2007, Belfast

Date decision recorded in register and issued to parties: