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Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> A v B and C [2007] NIIT 1199_05 (23 April 2007)
URL: http://www.bailii.org/nie/cases/NIIT/2007/1199_05.html
Cite as: [2007] NIIT 1199_5, [2007] NIIT 1199_05
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THE INDUSTRIAL TRIBUNALS



CASE REF: 1199/05




CLAIMANT: A



RESPONDENTS: B and C

T/A D




DECISION

The unanimous decision of the tribunal is that the respondent unlawfully discriminated against the claimant on the grounds of her sex. The majority decision of the tribunal is that the claimant is entitled to £35,552.41 compensation from the respondents.





Constitution of Tribunal:

Chairman: Ms Sheehan

Members: Mr Smyth

Mr Dodds



Appearances:

Mr Dunlop, Barrister at Law, instructed by Derry McGuiness & Co Solicitors appeared on behalf of the claimant

Mr S McQuitty, Barrister at Law, instructed by Sheridan & Leonard Solicitors represented the respondent C. B did not appear at the hearing.



  1. The claimant in her complaint lodged with the tribunals claimed that she had been the victim of sexual harassment on several occasions from December 2004 until a final incident on 27 July 2005 when she found the respondent, B, masturbating behind the claimant's back while she was sitting at her work station. The claimant claimed she had raised these incidents with the other partner in the business, C. C had taken no action. The claimant left her employment on 28 July 2005 and reported the alleged actions of B to police.


  1. The respondents in their response denied that the claimant had been sexually harassed. The respondents made no reference to the claim that monies were owed to the claimant in respect of annual leave.


  1. At a Case Management Discussion on 12 October 2006 it was agreed by the parties present that the issues for determination by the tribunal were:- whether the claimant was sexually harassed by B, (one of the partners in the respondent's business) and whether the claimant was constructively dismissed by the respondents.


  1. At the outset of the hearing the parties present indicated, in light of the plea of guilty by B to a charge of indecent assault on the claimant arising from the incident on 27 July 2005, this hearing was to proceed on the issue of the level of the compensatory award in respect of the claim of sexual harassment. The claimant indicated that the claim for constructive dismissal was not being pursued. The tribunal's task was essentially to identify whether there were other acts of sexual harassment over and above the incident on 27 July 2005; if so, the task of the tribunal was to identify the date and nature of those acts and the injury and loss suffered by the claimant as a result of those acts. Further it was agreed there was the issue of whether the respondents owed money to the claimant in respect of unpaid wages or accrued annual leave due in accordance with the Working Time Regulations. At the end of the hearing the claimant's claim in respect of the respondent's failure to provide the claimant with written terms and conditions of employment was raised. The respondent accepted that the claim had been raised in the initial complaint submitted to the Office of Industrial Tribunals and Fair Employment Tribunal and that no written terms and conditions of employment existed.


  1. The tribunal heard evidence from the claimant and C. The tribunal also received documents from the parties, which were identified as C1 and C2.


  1. The tribunal having heard the evidence and considering all the documentation before it found the following facts.


  1. The respondents employed the claimant as an office administrator. The claimant was employed from November 2004 until 28 July 2005. The respondents were the proprietors of a business. At the date of termination of the claimant's employment, the respondents employed the claimant as the only member of staff permanently in the office. The partners in the respondent business usually were out on the road at various jobs save for the periods when builders particularly were on holiday, such as the two-week period covering the 12th of July commonly referred to in Northern Ireland as the July fortnight. The claimant had not been in employment since she terminated her employment with the respondent.


  1. The tribunal heard evidence of seven dates, namely 27 July 2005, 25 July 2005, 21 July 2005, June 2005, March 2005 and December 2004 when acts of sexual harassment occurred. The incidents which occurred on those dates were outlined in the medical report of Dr Michael Curran included in C1. There was not unanimity between the tribunal members as to whether all the incidents detailed by the claimant in her evidence were acts of sexual harassment. Although the incidents detailed were accepted as occurring, a majority of the tribunal did not conclude that the incident in December 2004 when B requested that the claimant try on a pair of leather trousers that he had purchased as a gift for a relative amounted to an act of sexual harassment or that it caused the claimant any distress or injury to feelings. Equally a minority of the panel was of the view that the request to try on the same or similar trousers when visiting B's flat in March 2005 did not amount to sexual harassment. However the tribunal unanimously concluded that the other incidents detailed below were acts of sexual harassment by B. These incidents include:-


(a) March 2005 - referring to the claimant while at B's parents house during work hours as “his bit on the side”;


(b) June 2005 – B interfering with a bottle of water left on the claimant's desk;


(c) 21 July 2005 – placing a pubic hair in the claimant's soup:


(d) 21 July 2005 – following the claimant to the office toilets;


(e) 21 July 2005 – leaving his trousers unzipped;


(f) 25 July 2005 – leaving his trousers unzipped, following the claimant to the office toilets and making grunting/heavy breathing noises behind the claimant;


(g) 27 July 2005 – masturbating behind the claimant in the office.


  1. The claimant had taken annual leave, as had C, for the July twelfth week. C was on holiday during the week commencing 18 July 2005 and returned to work on 25 July 2005. B and the claimant returned from holidays on 18 July 2005.


  1. C gave evidence that no action was taken by him with regard to these incidents as no earlier complaint was made to him. He was not cross-examined by the claimant's legal representative on his claims that he could not recall the claimant complaining to him about the trousers incident nor did he call with her on the evening 25 July 2005. The majority of the tribunal concluded that the claimant had made earlier complaints as alleged as they preferred the manner in which she gave her evidence on this point. They found it significant that B was absent from the office for most of the claimant's working day on 26 July 2005 and that C worked mainly in the office during that day. The minority of the tribunal found it significant that the claimant's husband who was alleged by the claimant to be present when C allegedly called on the evening of 25 July 2005 did not give evidence to the tribunal. The minority accepted, in light of the nature of the respondent's business, that it was likely to be less busy over the twelfth fortnight, which could provide an innocent explanation for C's attendance in the office.


  1. The claimant left work on 27 July 2005 and later that evening made a complaint about B and his conduct on 25 July 2005 and 27 July 2005 to the Police Service of Northern Ireland. A prosecution was directed in November 2005 in respect of the events of the 27 July 2005. B pleaded not guilty initially. In February 2006 the claimant was notified of 7 March 2006 as the date fixed for her complaint of indecent assault to be heard. When the claimant attended court on 7 March 2006, she found C in attendance as well as B. C had attended court, apparently as a witness, at the request of B. Police confronted the claimant as lunchtime approached, with an allegation made by B that the claimant had made her complaint maliciously as a result of a failed extra marital affair between B and the claimant. It was not until after 2 pm that B admitted that the allegation was false and pleaded guilty to indecent assault of the claimant. These court proceedings caused considerable stress to the claimant and this false allegation resulted in tension between the claimant and her husband for a short period. The allegation left the claimant very angry.


  1. The partnership between the respondents was terminated in April 2006. The respondents denied liability in this matter right up to October 2006 when the Case Management Discussion was held. A response was submitted denying these allegations dated 10 October 2006, some six months after the respondent, B, had pleaded guilty to the incident alleged as occurring on 27 July 2005.


  1. The claimant first attended with her general practitioner on 28 July 2005 complaining of “anxiety and sleeplessness as a result of harassment by one of her bosses”. The claimant was referred for counselling which commenced in September 2005. The claimant had counselling with Nexus on a six weekly basis from September 2005 to August 2006. The claimant sought the assistance of police and a solicitor.


  1. By early August 2005 the claimant knew she was pregnant but miscarried in late August 2005. The claimant considered the actions of B to have played a part in that miscarriage. Between August 2005 and October 2005 the claimant reported to her doctor feelings of depression and inability to leave her home. These feelings of depression are noted in her general practitioner's notes up to and including late January 2006 when the claimant had a positive pregnancy test. The claimant's baby was born in September 2006.


  1. The claimant after these incidents was very depressed, suffered anxiety, sleeplessness and loss of appetite. Her social life, which had involved going out occasionally with friends during the week and some weekends, was affected. There was a period, where she was unable to go out unaccompanied day or evening, which lasted for three to four months. Counselling from Nexus in September to October 2005 was helpful to the claimant particularly with the feelings of anxiety and fearfulness. The claimant suffered the main symptoms for three to four months but her feelings of depression lasted for six to seven months. The claimant did not feel confident or happy until July/August 2006.


  1. The claimant claimed that she felt scared of B to this very day. B resides not too far from the claimant and she would see him drive past her house. The majority of the tribunal accepted the claimant's evidence on this point. The minority was unable to reconcile this evidence with the medical evidence submitted on the claimant's behalf. Dr. Curran's report records that the claimant told him she “rarely socialised unless spouse was present – spent much of her free time at home in evenings”. The claimant also expressed that she “still takes panic attacks when she sees B”. Dr. Curran's diagnosis is “anxiety/depression disorder – more acute symptomatology initial two - three months”. In answer to questions from the tribunal Chairman the claimant when questioned on her evidence with regard to her “fear” and her view that “B was deliberately driving past her home” could provide no explanation why she had not returned to police or her solicitor as advised by them some time previous to this hearing.


  1. The claimant's general practitioner continued to issue sick lines up to October 2006. A majority of the tribunal accepted those certificates as evidence that the claimant was not fit to attend or apply for work until October 2006, when she commenced her beauty therapist course. A minority noted the claimant had told Dr. Curran that she “has not been inclined to look for alternative employment since – and has continued to request sick lines from her GP for anxiety and depression symptoms”.


  1. The claimant refused medication for depression when her pregnancy was confirmed. She has managed without medication since the baby was born in September 2006.


  1. The claimant from when she left school in 1998, other than for some short breaks and one lengthier absence of a year between August 2001 and September 2002, had been in continuous employment up to 2001. She lost her employment in 2001 as a result of redundancy. In September 2002 the claimant commenced new employment. In February 2003 the claimant had complications with a pregnancy that resulted in her remaining off work throughout that pregnancy. The baby was born in October 2003. The claimant suffered a period of postnatal depression for which her general practitioner treated her until May 2004. The job with the respondents in November 2004 was the claimant's first since the birth of her child in October 2003. The claimant did not seek any employment since she left the respondent's employment in July 2005. In October 2006 she commenced training for an alternative career as a beauty therapist.


  1. During the hearing the parties announced to the tribunal that the claimant's claim in respect of holiday pay and unpaid wages had been agreed to amount to the sum of £230 and £92.13 respectively. The claimant's weekly net loss was agreed as £153.55 weekly.


  1. The claimant's child was born on 25 September 2006 and therefore the claimant, had she not been subjected to the unlawful conduct of the respondent, B, would have been on maternity leave in October 2006 and might have been on the day of hearing depending on the date her maternity leave commenced. In light of the birth date of the child the tribunal concluded that the claimant had she been in employment with the respondents would at the earliest, given that the pregnancy was uncomplicated, have commenced her maternity leave sometime between the 10 July and 1 September 2006.


  1. No written submissions were made on behalf of either party other than the printed document “C2” setting out the alleged schedule of loss prepared by the claimant. Oral submissions were made on behalf of the parties to the tribunal. It was proposed on behalf of the respondent, D, that psychiatric evidence indicates that serious symptoms lasted for two to three months. The loss to be compensated arises from the date of dismissal but the impact of intervening factors must be taken into account. Future loss is not a relevant head in this case as the claimant has chosen to pursue a totally different career. It is the respondents' view that the suitable award for injury to feelings falls within the lower end of the middle band as set out in Vento –v- Chief Constable of West Yorkshire Police [2003] IRLR. It was submitted that there should be no award for aggravated damages and the tribunal should take cognisance of paragraph 12 - 154 of the document handed in to the tribunal to sever C's liability for B's actions in connection with the criminal prosecution.


  1. It was submitted on behalf of the claimant that any award for injury to feelings fell within the high band as set out in Vento. This was a case of gross sexual harassment. Even though the longevity was not as long as some cases it still extended over a six-month period. An award for aggravated damages should be made in light of the respondent's continual denial of the validity of the claimant's claims and in particular the allegations of an affair made by B in March 2006 at the contested criminal proceedings. The submission by the respondents of a document denying the validity of the claimant's claims in light of the plea of guilty in respect of 27 July 2005 events aggravated the injury suffered by the claimant. In that respect the tribunal was referred to a recent tribunal decision of Tomas, Souza and others v JSD Recruitment Services and others (2005) NIIT 2470 that included an award to reflect conduct of the parties during the hearing. In light of the clear diagnostic finding of Dr. Curran there should also be an award for personal injury. The respondent's suggestion that liability be severed as between the respondents is novel and should bear no weight with the tribunal.


Applicable Law


  1. The tribunal has had regard to the provisions of the Sex Discrimination (Northern Ireland) Order 1976. The tribunal may where it considers it “just and equitable to do so” make an order requiring the respondent to pay to the claimant compensation of an amount corresponding to any damages he could have been ordered to pay to the claimant if the compensation fell to be determined by the County Court. The general principle in assessing compensation is “as far as possible put the claimant in the position they would have been but for the unlawful act” - Ministry of Defence v Wheeler [1998] IRLR 23. It is clear from Essa v Laing Ltd [2004] IRLR 313 that the award should only be in respect of the damage caused by the act of discrimination – in effect the specific acts held by the tribunal to constitute unlawful discrimination.


  1. There is no express provision in the anti-discrimination statutes or in the tribunal rules providing discretion for the tribunal to apportion compensation between named respondents. At a very late stage near the end of the hearing, the respondent's representative suggested that division of liability should be made as C should not be held responsible for the acts of B and produced to the tribunal a photocopy of a section entitled “Liability of partners for acts known to be unauthorised”. The tribunal did not consider that this section was particularly relevant to this case as on C's own admission there was no written partnership agreement. The tribunal noted that even after the allegations of the claimant were brought to the attention of C, he chose to align himself with B for the criminal proceedings. C had a response submitted to these proceedings, which contended that the claimant's complaints were not valid even in respect of the allegation concerning 27 July 2005 when he knew B had pleaded guilty to indecent assault. In these circumstances the tribunal is of the view that liability for these unlawful events follows the normal situation in partnerships - falls squarely with both the respondents.


  1. The tribunal has divided the award into compensation for non-financial loss and financial loss. The parties did not address the tribunal as to when or if interest on the awards should be calculated. The relevant law provides where a tribunal makes an award of compensation for unlawful compensation it may include interest on the sums awarded and it must consider this issue whether the parties make any such application. The relevant legislation for this case is the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996. The current rate prescribed in Northern Ireland is 8% per annum. Interest on injury to feelings awards runs from the date of the contravention or act of discrimination complained of to the day of calculation. For all heads of loss other than injury to feelings interest is calculated for the period from the mid-point date to the day of calculation. The mid-point date is the halfway point between the date of the act of discrimination complained of and the date on which interest is being calculated. Interest on aggravated damages for conduct in resisting a claim and subsequent to termination of employment should not be based on the whole period since the discriminatory act: Zaiwalla & Co v Walia [2002] IRLR 697. Interest should be awarded on the claimant's net loss: Brentwood Bros (Manchester) Ltd v Shepherd [2003] IRLR 364. The tribunal may in exceptional circumstances calculate interest by reference to different periods or use different periods for different sums in the award where the tribunal considers that serious injustice would be caused having regard to the circumstances of the case as a whole or to a particular sum in the award if interest were to be awarded in respect of the ordinary periods set out above.


Non-financial loss – injury to feelings


  1. Compensation in respect of an unlawful act of discrimination will include compensation for injury to feelings where the claimant has shown that anger, distress and affront has been caused by the unlawful act of discrimination – Ministry of Defence v Cannock [1994] IRLR 509. Where there is more than one unlawful act of discrimination a global approach to assessing injury to feelings is preferable to making separate awards for each act – ICTS (UK) Ltd v Tchoula [2000] IRLR 643. Awards for injury to feelings should be made without regard to tax implications of the award and therefore should not be grossed up: Orthet Ltd v Vince-Cain [2004] IRLR 857. In addressing the award to be made in respect of injury to feelings the tribunal considered the principles as set out in Vento –v- Chief Constable of West Yorkshire Police [2003] IRLR 102 in particular those enunciated by Smith J in Armitage, Marsden and HM Prison Service v Johnson [1997] IRLR 162 EAT. Vento identified three broad bands for assessing injury to feelings awards. The majority view of the tribunal was that a five month or seven month period of harassment was not an unlengthy campaign of harassment. They considered that the incidents were very serious because of the impact they had on the claimant. The majority accepted the claimant's claim that she was still afraid of B, an individual who had performed gross acts. The majority was of the view that this was a reasonable fear on the claimant's part. The majority noted that no opinion of the medical personnel was contained in the medicals submitted by the claimant with regard to the impact on her miscarriage in August 2005 and concluded that any impact was so minimal as not to warrant mention. The majority noted the diagnosis contained in the medical report submitted on behalf of the claimant but considered, having observed the claimant give her evidence, that the fear and anxiety she complained of as continuing to the day of hearing was genuine. It was a fear that had lasted for one year and five months and therefore they concluded that the award for injury to feelings fell within the high band and £15,000 was appropriate in this case.


  1. The minority view was that the claimant had suffered a serious reaction to the acts of harassment that are detailed at paragraph 8(a) to 8(g) which for a period severely impacted on her day-to-day life. The minority considered the reaction of the claimant when her evidence touched on her miscarriage in August 2006 and formed the view that it added not only to the claimant's feelings of anger but also her depression. It was not possible for the minority, in light of her reaction when giving evidence on this matter, to ignore the impact of her sad loss of her pregnancy in August 2005. The minority was of the view for the reasons detailed in this paragraph and the paragraphs above that although the effect of these events played severely on the claimant for the initial few months the impact was less in the early part of 2006. The minority was mindful of the decision of the Court of Appeal in England and Wales in Coleman v Skyrail Oceanic Ltd [1981] IRLR 398 who ruled that injury to feelings not caused by the unlawful discrimination is not properly attributable to an unlawful act and therefore must be disregarded in the assessment of compensation. The claimant had been notified of the pending prosecution in November 2005, which would have caused her some anxiety. By January 2006 the claimant was pregnant again. The claimant's own admission is that the most severe symptoms lasted three to four months. The minority view was that by the conclusion of the criminal proceedings in early March 2006 much of the anxiety had lessened but the claimant's anger would have been increased as a result of the respondent's conduct in relation to those proceedings. The minority was convinced that the length of the actual acts of harassment by the respondent in this case was not particularly lengthy and in light of the tribunal's conclusion and her own evidence that the claimant did not feel confident or happy until the summer of 2006 the minority could not agree that the appropriate band was the higher band of award. Until July 2005, unlike the Vento situation and the Northern Ireland case the tribunal was referred to, the conduct of the respondent was not continuous. The minority compared this award with the situation in Vento, and the principles laid out in Vento, in particular the view expressed by the Court of Appeal that sums in the high band should be reserved for the “most serious” cases where there has been “a lengthy campaign of discriminatory harassment”. The minority view was that the appropriate band for an award for injury to feelings was the middle band and £10,000 was the appropriate sum.


  1. The tribunal considered the matter of interest to this award. It appeared to some members of the tribunal that the claimant did not make the respondents aware of the earlier acts of discrimination until the July 2005 incidents. Further the majority view of the tribunal members was that the discriminatory acts at most lasted over a four/five month period – as the claimant could not place the visit to the parent's home with any more certainty than March/April 2005. The tribunal concluded that in the circumstances of this case there was a risk of injustice if interest were to be calculated in respect of the ordinary period as set out above but they could not say that the sums involved would satisfy the criteria of “serious injustice”. The tribunal calculated interest as accumulating on the award from 1 April 2005 until the date of calculation 12 December 2006 – as £2,030.76.


Aggravated damages


  1. There have been different views expressed in recent years as to whether a separate award should be made for aggravated damages or whether such damages should be included in the award for injury to feelings. The Northern Ireland Court of Appeal in McConnell v Police Authority for Northern Ireland [1997] IRLR 635 was firmly of the view that in most instances such awards should be rare and normally adequately reflected in the award for injury to feelings. However the principles elucidated by the Court of Appeal in McConnell does not differ in substance from those expressed in Alexander v Home Office [1998] IRLR 190. Such awards should only be made where the respondent has acted in a “malicious, insulting or oppressive manner in committing the act of discrimination”. Anthony Korn and Mohinderal Sethi in “Employment Tribunal Compensation” third edition give examples in which aggravated damages are recoverable which include: where the respondent uses inappropriate and intimidatory conduct in defending the tribunal proceedings or has attempted to cover up or trivialise the acts of discrimination. The view of the tribunal was that the manner in which both respondents conducted themselves once the claimant had raised the issue of sexual harassment by B was insulting to the claimant. The presence of C at the criminal proceedings in support of B ran was intimidatory as clearly he had not been present during the alleged incident so had no direct evidence to give on the matter at issue. His presence at the Magistrate's Court implied that he had evidence of extraneous matters to proffer to the court. The allegation of an affair was malicious on the part of B. Further the respondents' response filed in October 2006 denying bluntly these allegations when the respondents knew, at the very least, B had accepted 27 July incident can only be viewed as an attempt to cover up or trivialise B's conduct. In these circumstances the tribunal was of the view that an award of aggravated damages was appropriate. The majority view, which included the member who was in the minority so far as the level of the award for injury to feelings was concerned, was that the appropriate award was £2,000. The minority view was the appropriate award was £1,500. The tribunal concluded in this case that as the mid-way point occurred in early February 2006, which predated the aggravating actions of the respondents there was a “serious risk of injustice” if the date interest accumulated in respect of this award came before 7 March 2006. Accordingly the tribunal calculated interest on this award as £123.07.


Personal injury


  1. The general principle is that psychiatric injury is recoverable if caused by the discrimatory act. Anthony Korn and Mohinderal Sethi in “Employment Tribunal Compensation” third edition, at page 297, sets out four categories of award at paragraph 17. 60. Moderate (£3,250 to £10,500) applies to cases where there has been significant improvement by the date of the remedies hearing and where the prognosis is good. Minor (£800 to £3,250) applies where symptoms, which adversely affected daily activities and sleep, were of limited duration. The tribunal was unanimous that the award fell within the moderate award category. The tribunal noted that such an award could be reduced if other factors intervened. The tribunal was conscious of the risk of double recovery. Consideration was given to the Judicial Studies Board Guidelines as detailed at paragraph 17.59 of “Employment Tribunal Compensation” third edition.


  1. The majority of the tribunal concluded that the award for injury to feelings did not reflect “the anxiety/depression disorder” diagnosed by Dr. Curran. It was their view that the claimant's ability and health did not permit her to cope with life and work until October 2006.


  1. The minority view of the tribunal was that the claimant's health was severely impacted upon for three to four months, that the condition improved to some extent but not enough to enable her to return to work until early Summer 2006 when it was no longer impacting on her life to such an extent she required any medical treatment.


  1. The unanimous view of the tribunal members was that there was no future vulnerability. The unanimous view of the tribunal was that for the rest of 2005 and a substantial part of 2006 the claimant suffered not only injury to feelings but also an injury to her health. The appropriate award fell within the moderate band and is £4,000.


Financial loss


  1. The tribunal noted that there was an obligation on any claimant to mitigate their loss. The claimant had not sought any employment since the date she had left the respondents' business premises in July 2005. It is clear from the medical evidence that physically she was not well enough to seek employment up to and including the early months of her pregnancy. The view of this tribunal was that the calculation of financial loss was complicated by the claimant's personal circumstances, in particular, the timing of the claimant's pregnancy. The tribunal concluded unanimously that it was not realistic to expect the claimant to have been able to obtain alternative employment successfully by the time the claimant was in her third trimester. The tribunal concluded as a matter of fact that the claimant, had she not been subjected to the unlawful conduct of the respondent, B, would have been on maternity leave in October 2006. In light of the birth date of the child the tribunal concluded that the claimant had she been in employment with the respondents would at the earliest, given that the pregnancy was uncomplicated, have commenced her maternity leave sometime between 10 July and 1 September 2006. The tribunal considered it just and equitable in light of those facts to conclude that the weekly loss at full net pay of £153.55 continued up to 31 August 2006, amounting to 55 weeks. The claimant would while on maternity leave have been entitled to six weeks at nine tenths of her weekly pay for the period up to week ending 13 October 2006. The tribunal calculated that the reduced weekly amount was £139.995 and considered it just and equitable to round that figure up to £140 net. There would then have followed a twenty week period of statutory maternity pay, which is paid at the rate of £108.85. The tribunal also awarded to the claimant the sums agreed by the parties in respect of unpaid wages and accrued unpaid holiday leave. The tribunal considered the failure of the respondents to issue written terms and conditions of employment and concluded that failure merited an award that reflected two weeks net pay. Accordingly this was the basis for the tribunal's calculation of the financial loss to the claimant. Should the tribunal be wrong in approaching the calculation on that basis it was the majority view that the financial loss of the claimant continued up to October 2006 when the claimant determined to pursue an alternative career in beauty therapy. The full details of the award to the claimant is set out below:


Loss of Income from effective date

Of termination of employment (28 July 2005)


28/7/05 until 31/8/06

57 weeks at £153.55 net £ 8,752.35


1/9/06 until 13/10/06

6 weeks at £140 £ 840.00


20 weeks SMP at £108.85 £ 2,177.00



Unpaid Wages £ 92.13


Accrued Holiday pay £ 230.00



Award in respect of

Article 30 ERO £ 307.10


Injury to feelings plus

Interest £2,030.76 £17,030.76


Aggravated Damages plus

Interest £123.07 £ 2,123.07


Personal Injury £ 4,000



Total Award £35,552.41


  1. The Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996 do not apply as the award under the Sex Discrimination (Northern Ireland) Order 1976 falls outside the remit of those regulations and the claimant made no application in respect of incapacity or invalidity benefits.


  1. This is a relevant decision under the Industrial Tribunals (Interest) (Northern Ireland) Order 1990.








Chairman:



Date and place of hearing: 11-12 December 2006, Belfast



Date decision recorded in register and issued to parties:

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