Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 948/06

CLAIMANT: Gemma Patterson

RESPONDENTS: 1. Naomi Holmans

2. Roamer Holistic Health & Beauty

DECISION

The unanimous decision of the tribunal is that the claimant was unlawfully discriminated against on grounds of sex, and constructively dismissed. The tribunal awards the claimant £8,676.07

Constitution of Tribunal:

Chairman: Mrs P Smyth

Members: Mr Dunlop

Mr Welsh

Appearances:

The claimant was represented by Mr R Shields, Barrister-at-Law, instructed by Wilson Nesbitt, Solicitors.

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

1. The issues

The issues for the tribunal to determine are:-

(1) whether the claimant was unlawfully discriminated against on grounds of her pregnancy; and

(2) whether the claimant was constructively dismissed.

2. The tribunal heard evidence from the claimant and Mr Colin Thompson on her behalf. The tribunal also heard evidence from the respondent and from her husband, Mr David Holmans, on her behalf. The tribunal also considered an agreed bundle of documents.
3. The tribunal found the following facts proved on a balance of probabilities:-

(3.1) The claimant commenced a job skills training programme at the Belfast College of Training and Education in 2001. She completed Level I and Level II training as a Trainee Beautician.

(3.2) In order to register as a Level III Trainee, the claimant was required to be in full-time employment. The claimant had ended her relationship with the salon with which she had completed her Level II training and therefore she was unable to begin her Level III training until she became employed by the respondent in February 2005.

(3.3) The claimant worked 31 hours in the respondent's salon and attended college one day per week. It is clear that the respondent did not appreciate that the claimant's legal status was that of an employee. The claimant's job description states:-

"If on the successful completion of your NVQ III you are offered a permanent position and you wish to take it you will be offered a written contract of employment."

At the grievance meeting which predated the claimant's resignation, the respondent read out a document outlining its position, in which it is recorded:-

"At no time during your involvement with the salon have you been treated less favourably in any way whatsoever, to the contrary you will see that you have received favourable treatment for a person who is only on placement from a college."

Furthermore, in the response which was lodged to the claim, the respondent refuted the claimant's assertion that she was an employee. At the hearing it was accepted for the first time that the claimant was an employee.

(3.4) In order to take part in the job skills programme, the employer, the employee and the college are required to sign a tri-partite agreement setting out each party's rights and obligations. In particular the agreement confirms that the employee must work 31 hours per week. Mr Colin Thompson, Head of Beauty at the college, gave evidence that he had attended the salon shortly after the claimant commenced her employment to discuss the contents of the written agreement and to ensure that all parties signed it. The respondent was adamant that she had neither signed such a document, nor had she ever met Mr Thompson. The tribunal accepts the evidence of the respondent for the following reasons:-

(1) The agreement which each party allegedly signed could not be produced to the tribunal. Mr Thompson stated that it had been lost during the college's re-location. However, other documents relating to the claimant's history on the job skills programme have not been lost. No details were given to the tribunal to explain how or in what circumstances these particular documents had disappeared.

(2) On 18 April 2007 the claimant sought a copy of the tri-partite agreement from the respondent. The respondent replied on 23 July 2007 in the following terms:-

"I did not sign or see sight of a tri-partite agreement, the only item I was asked for sight of [was] my public liability insurance which I photocopied and sight [sic] to the tech via Gemma. I have no recall of any visits from the BIFHE."

The respondent could not have known when she gave this reply that the college would be unable to produce a copy of the tri-partite agreement. Therefore, if this was an untruthful answer the respondent ran the risk that the lie would be exposed when the document was produced.

(3) The claimant accepts that she was given a copy of the respondent's insurance certificate to bring to the college.

(4) In the claimant's witness statement she states at Paragraph 5:-

"I believe that a representative from my college also visited the salon to ensure myself and Mrs Holmans were both aware of our obligations under the agreement … ."

In the tribunal's view, the use of the words "I believe" signify that the claimant had no actual recollection of any such visit taking place.

(5) The respondent accepts that at some stage during the claimant's employment a representative from the college called at the salon to check on the claimant's progress and spoke to the manageress, Liz, in the respondent's absence. The tribunal therefore concludes that Mr Thompson may be mistaken in his evidence about the circumstances in which he attended the salon and the identity of the person to whom he spoke on that occasion.

(3.5) The claimant informed the respondent that she was pregnant in June 2005. She commenced maternity leave on 31 December 2005. The claimant alleged that in the latter stages of her pregnancy, the respondent reduced her hours without any request being made by the claimant. The respondent stated that this arrangement was 'by agreement' because of the long hours in the salon. During the hearing however the respondent relied on documents relating to hours worked by the claimant to suggest that no reduction had in fact occurred. The tribunal does not consider that the documents assist the tribunal in determining the issue because they relate to the period before the end of October 2005, and not to November or December which was the period leading up to the commencement of maternity leave which is when the alleged reduction occurred. In view of the respondent's witness statement the tribunal accepts that the respondent did reduce the claimant's hours in the latter stages of her pregnancy, albeit that it may have been due to concern about the long hours in the salon. It is accepted that the claimant told the respondent that she wished to return to work following her maternity leave. The issue for the tribunal is whether the claimant told the respondent prior to her maternity leave that she would only return on a part-time basis, or whether the respondent unilaterally varied the claimant's full-time contract to part-time.

The claimant's evidence

(3.6) The claimant's evidence was that at no time prior to her maternity leave had she informed the respondent that she wished to return from her maternity leave on part-time hours. The claimant collected her statutory maternity pay on a weekly basis from the respondent's salon. Shortly after she commenced her maternity leave she became aware that two new beauticians had been employed by the respondent. Not long before the claimant was due to return to work she was asked by the manageress, Liz, to confirm the hours on which she intended to return to work. The claimant stated that she was surprised to be asked such a question and telephoned the respondent to discuss her return to work. She was asked to attend a meeting with the respondent on 13 May 2005. At that meeting the claimant alleged that she was told that she would be permitted to return to work on the basis of 13 hours which would be made up of two night shifts and a Saturday shift. The claimant alleged that she informed the respondent that she had to be in full-time work in order to complete her Level III training on the job skills programme. The claimant alleged that Mrs Holmans laughed and said that this had nothing to do with her. The claimant immediately sought advice from the Equality Commission who advised her to write a letter to the respondent setting out her grievance. Before sending this letter the claimant again telephoned the respondent to inform her that the college would not permit her to continue her studies unless she was in full-time employment. The claimant sent the letter of grievance to the respondent on 19 May 2006.

The respondent's evidence

(3.7) The respondent's evidence was that the claimant had regularly stated that she would only return from maternity leave on part-time hours because this suited her childcare arrangements and also would not affect any benefits to which she would be entitled. The respondent stated that this had been said in the presence of the manageress, Liz, and also in the presence of customers. The respondent stated that in response to this request for part-time hours the respondent had employed a replacement for the remainder of the claimant's full-time hours. The respondent insisted that at the meeting on 13 May 2005 the claimant had agreed to work 13 hours and that she had been informed that more hours would become available to cover holiday periods and busy periods. The respondent denied that the claimant had pointed out that she was required to work 31 hours in order to complete her course or that she had laughed and said, "that is nothing to do with me". The respondent also stated that when the claimant telephoned her on 19 May 2005 she did not have time to discuss the matter because she was about to commence a treatment with a client.

(3.8) Having considered the evidence of the claimant and the respondent, the tribunal accepts the claimant's evidence that she did not inform the respondent prior to going on maternity leave that she wished to return on part-time hours only. Our reasons for this conclusion are as follows:-

(1) Despite the fact that the respondent stated in evidence that the claimant's request was made in the presence of Liz, the manageress, and in the presence of customers, the tribunal did not hear any corroborative evidence. The tribunal was told by the respondent that Liz was on honeymoon. No request was made for an adjournment of this hearing to enable Liz to attend the tribunal and give evidence in support of the respondent. In our view the evidence of Liz, the manageress, would have been of significant importance in resolving the dispute between the claimant and the respondent about this issue which is at the heart of the claimant's discrimination claim.

(2) Nor did the respondent call evidence from any customer, despite the tribunal giving Mr Sheridan an opportunity to consider the matter and to take instructions as to whether such a witness should be called.

(3) Although the tribunal accepts that the respondent did not sign a copy of the tri-partite agreement and therefore that she may not have been aware that the claimant was obliged to be in full-time employment in order to complete her training, the claimant could have been in no doubt before she commenced her maternity leave of the requirements of her course. This is because she had previously been unable to commence her Level III training because she had severed her relationship with the previous salon and it was only when she was employed on a full-time basis by this respondent that she was permitted to begin that part of her studies. In those circumstances, the tribunal considers it unlikely that the claimant would have requested a return to work on part-time hours until her training was complete.

(4) The respondent did not make any note of the claimant's alleged request to return to work on part-time hours. The respondent had a personal file for each member of staff and we accept that she was meticulous about keeping proper records. Although this was a small firm, the tribunal considers that if a member of staff requested a significant variation of her hours, it is more likely than not that a record would have been made of that request.

(5) The letter of grievance which the claimant sent to the respondent on 20 May 2006 refers to the respondent's "despicable offer of 13 hours per week of work". The strong terms of this letter do not suggest that the meeting on 13 May 2006 at the respondent's salon ended with agreement as to the claimant's hours, nor that the offer was based on a specific request by the claimant prior to going on maternity leave.

(3.9) It is accepted that following receipt of the letter from the Equality Commission, the respondent arranged a meeting to consider the grievance having taken legal advice. The claimant's mother and the respondent's husband attended this meeting. At the outset the respondent read out a pre-prepared document in which she had set out her position and her account of events which had occurred. At the end of the written document, the claimant was asked two questions. The first question was, "Do you wish to work the 13 hours as previously agreed?" The claimant replied, "No" to that question. The second question was, "When do you wish to return to work?" The claimant replied, "Whenever I get my hours sorted out".

(3.10) There was a dispute between the parties as to the role which the respondent's husband had played at this meeting. The respondent's husband, Mr David Holmans, prepared a witness statement for the tribunal, the contents of which he read out to the tribunal under oath. Paragraph 1 of that witness statement states, "I have nothing to do with the company; but as husband of Naomi I attended the grievance meeting on Tuesday 27^th of June 2006 to take the minutes only". Mr Holmans stated that the only words he spoke at the meeting were to advise all three people present to sit back and think and come to some arrangement that suited everyone. In particular, Mr Holmans stated at Paragraph 5, "These are the only words I said, I just continued taking the notes". The claimant alleged that Mr Holmans had told her in clear terms that it was "13 hours or nothing", "13 hours or she was jobless". Mr Holmans was asked for a copy of the minutes which his statement confirms were taken during the meeting and which Mr Holmans said he continued to take throughout the meeting. Mr Holmans denied, at first, having taken any minutes. He alleged that the term 'minutes' was intended to described the pre-prepared document which was read out at the outset of the meeting. He then stated that although he had started to make notes in order to refresh his memory, which he knew to be important because of his own employment, he realised that it would not be necessary to take any notes to refresh his memory because it was clear that the parties were at stalemate. He told the tribunal that he did not consider it necessary to retain the notes which he had begun to make. He therefore destroyed his notes by shredding. The tribunal found Mr Holmans' evidence to be contradictory and to be entirely inconsistent with the contents of his own witness statement. In those circumstances, the tribunal prefers the evidence of the claimant, that Mr Holmans did take an active part in the meeting and warned the claimant that if she did not agree to part-time hours she would have no job.

(3.11) Following the termination of the claimant's employment, the college agreed to permit the claimant to complete her course without being in full-time employment which was an exception to the normal requirements.

4. The law

(4.1) Article 3(1) of the Sex Discrimination (Northern Ireland) Order 1976 provides:-

"A person discriminates against a woman in any circumstances relevant for the purposes of this Order if –

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man. …"

Article 8(2) provides:-

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

(a) …

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

(4.2) The Burden of Proof Regulations

The Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations amends the Sex Discrimination (Northern Ireland) Order 1976. The relevant portion states:-

"63A(2) Where, on the hearing of a 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 the complainant which is unlawful by virtue of Part III; or

(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination against the complainant;

the tribunal shall uphold the complaint 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."

Guidance on the application of these Regulations has since been given by the Court of Appeal in Barton v Investec Henderson Crosthwaite Securities Ltd and Igen Ltd v Wong [2005] IRLR 258. In Igen Ltd v Wong [2005] IRLR 258 the Court of Appeal ruled that the guidance issued by the EAT in Barton v Investec Henderson Crosthwaite Securities Ltd would be applied in amended form as follows:-

(1) Pursuant to Section 63A of the 1975 Act, 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 employer has committed an act of discrimination against the claimant which is unlawful by virtue of Part 2, of which, by virtue of Section 41 or Section 42 of the 1975 Act, is to be treated as having been committed against the claimant. These are referred to below as 'such facts'.

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

(3) 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'.

(4) 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.

(5) It is important to note the word 'could' in Section 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 where inferences of secondary fact could be drawn from them.

(6) 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.

(7) These inferences can include, in appropriate case, any inferences that it is just and equitable to draw in accordance with Section 74(2)(b) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within Section 74(2) of the 1975 Act.

(8) 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 Section 56A(1) of the 1975 Act. This means that inferences may also be drawn from any failure to comply with any relevant Code of Practice.

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

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

(11) To discharge that burden it is necessary for the employer 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.

(12) That requires a tribunal to assess not merely whether the employer 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.

(13) 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.

(4.3) Constructive dismissal

Article 127(1) of the Employment Rights (Northern Ireland) Order 1996 as amended provides that:-

"For the purposes of this Part an employee is dismissed by his employer if –

(a) …

(b) …

(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct".

5. The tribunal's conclusions

(5.1) In view of the tribunal's finding that the respondent's decision to permit the claimant to return to work on a part-time basis only was not based on any request by the claimant, the tribunal is satisfied that the claimant has proved facts for which the tribunal could conclude, in the absence of a satisfactory explanation that the claimant was discriminated against on grounds of her pregnancy. The burden of proof shifts to the respondent to prove that her treatment of the claimant was 'in no sense whatever' on grounds of sex. The tribunal is not satisfied that the respondent has discharged the burden of proof. It is clear that but for the claimant's pregnancy she would not have been absent on maternity leave and her hours would not have been unilaterally reduced by the respondent. The fact that the tribunal is satisfied that the respondent did not sign the tri-partite agreement is not relevant. Nor is it relevant that the respondent clearly did not appreciate that the claimant had the legal status of employee although that may explain why the respondent acted as she did. Accordingly, the tribunal is satisfied that the claimant was treated less favourably on grounds of her pregnancy.

(5.2) The tribunal is also satisfied that the respondent's conduct in unilaterally reducing the claimant's hours, particularly in circumstances where it was brought to the respondent's attention that the claimant had to be in full-time employment in order to complete her training entitled the claimant to resign and claim constructive dismissal. The tribunal does not accept that the claimant failed to mitigate her loss by refusing to accept 13 hours instead of the full-time hours to which she was entitled. The claimant's contract of employment was fundamentally breached by the respondent's conduct, and in such circumstances the claimant is entitled to treat her employment as having been terminated.

6. Compensation

The parties agreed the compensation as follows:-

Basic award £ 127.00

Loss of Industrial Rights £ 250.00

Compensatory award £2,824.50

Total £3,201.50

Injury to feelings

The tribunal accepts that the claimant was sad and disappointed at the circumstances in which her employment was terminated, particularly in view of the fact that the completion of her training was put in jeopardy. Although the college did agree to make an exception to their normal rules that all trainees had to be in full-time employment in view of the fact that the claimant had almost finished her training, the tribunal accepts that the uncertainty of her situation caused her distress and anxiety. In those circumstances, the tribunal is satisfied that the appropriate sum for injury to feelings is £5,000.00, which is the amount the claimant sought by way of remedy for injury to feelings.

7. Interest

The tribunal considered that it should award interest under the provisions of The Industrial Tribunal (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996. The total award of compensation is therefore set out as follows:-

Basic award £ 127.00

Loss of Industrial Rights £ 250.00

Compensatory award £2,824.50

Interest at 8% per annum for the midpoint date

(1 February 2007) £ 185.25

Total £3,386.75

Injury to feelings £5,000.00

Interest at 8% per annum from 13 May 2006 £ 289.32

Total £5,289.32

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

Chairman:

Date and place of hearing: 10 – 11 September 2007, Belfast

Date decision recorded in register and issued to parties: