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Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Fulton v LA Hair Ltd [2008] NIIT 00686_08IT (12 November 2008)
URL: http://www.bailii.org/nie/cases/NIIT/2008/00686.html
Cite as: [2008] NIIT 686_8IT, [2008] NIIT 00686_08IT
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THE INDUSTRIAL TRIBUNALS


CASE REF: 00686/08



CLAIMANT: Katrina Fulton



RESPONDENT: L.A. Hair Limited



DECISION

The unanimous finding of the tribunal is that the claimant did not suffer sex discrimination but that she was unfairly dismissed by the respondent and she is awarded compensation of £464.16.





Constitution of Tribunal:

Chairman: Mr B Greene

Panel Members: Mrs Sylvia Doran

Mr Patrick Archer



Appearances:

The claimant attended in person.

The respondent was neither in attendance nor represented.


1. The tribunal heard from the claimant. The tribunal also had regard to the response entered on behalf of the respondent and 10 bundles of documents amounting to 14 pages.


THE CLAIM AND DEFENCE


2. The claimant claimed that she had been unfairly dismissed and had suffered sex discrimination by reason of her pregnancy and maternity leave. The respondent denied the claimant’s claims.


The tribunal was satisfied that the respondent had been notified of today’s hearing and decided to proceed with the hearing in the absence of the respondent.



THE ISSUES


3. At a Case Management Discussion on 15 September 2008 the following issues were agreed for determination;-


(i) Whether the claimant had followed and complied with the provisions of the statutory grievance procedure.


(ii) Whether the claimant had been unfairly dismissed by the respondent.


(iii) Whether the claimant was discriminated against by the respondent on the grounds of her pregnancy.


FINDINGS OF FACT


4. (i) The claimant was born on 4 May 1988.


(ii) The respondent employed the claimant from 5 July 2006 until 13 February 2008 as a hair stylist.


  1. In January 2007 the claimant became pregnant and notified her employer.


(iv) The claimant worked 32 hours per week.


(v) In or about May 2007 her hours were reduced to 24 hours per week by agreement between the respondent and the claimant.


(vi) In July 2007 the claimant went on maternity leave which was scheduled to end on 28 March 2008.


  1. The claimant agreed with the respondent before her maternity leave began that she would return to work and would do 16 hours per week.


  1. The respondent carried out the business of hairdressing. The respondent company is owned by Lorraine Adamson and Louise Adamson who work as senior stylists within the respondent company. The respondent also employed Caroline McKibben and Caroline White as senior stylists and the claimant and Amanda Kingham as stylists. At that time Christine Cairns was a trainee hair stylist, paid for by her supporting training organisation.


  1. In January 2008 the claimant was informed that one of the directors Lorraine Adamson was creating a new hair-styling business and that the existing premises and business would be closed.


  1. On 5 February 2008 the claimant wrote to the respondent to confirm her return to work date.


  1. By letter of 13 February 2008 the respondent wrote to the claimant and enclosed her weekly maternity benefit and another payment which the claimant has interpreted as one week’s notice pay. In the letter the respondent notified the claimant that the business had ceased trading from 13 February 2008 and that she should seek further maternity benefit payments from the DHSS.


  1. By reason of the respondent having ceased trading a redundancy situation had arisen.


The claimant doubts that the respondent is insolvent but the evidence before the tribunal, both from the respondent and from its accountants, persuaded the tribunal that in fact a redundancy situation did obtain by reason of the cessation of trading by the respondent. The letter from the Insolvency Service merely informs the claimant that the respondent had not become bankrupt nor had been the subject of a court order. It did not, as the claimant believed, assert that there was no insolvency situation.


  1. On 13 February 2008 a new hairdressing salon known as Hair @ Eden opened a few doors from the premises previously occupied by L.A. Hair Ltd. The hair stylists at Hair @ Eden were Lorraine Adamson, Caroline McKibben and Caroline White. Louise Adamson, Amanda Kingham and the claimant did not work at Hair @ Eden. Each of the stylists rented a chair, which is a method whereby the people who work in the premises are not employees of the business but are self-employed persons responsible for their own clientele but who avail of the common facilities and premises.


  1. The claimant lodged an appeal against her dismissal and a grievance by letter of 10 March 2008. On the same day she wrote to the Insolvency Service, as advised by the respondent’s accountant.


The Insolvency Service replied to the claimant, on 26 March 2008 and indicated that the respondent had not been adjudicated bankrupt nor was it the subject of a court winding-up order. They also advised the claimant that it was possible that the respondent went into voluntary liquidation in which case they would be unaware of that.


  1. The respondent wrote to the claimant on 18 July 2008 and offered to have a meeting with the claimant, in response to her letter of appeal against dismissal and lodging of a grievance.


  1. The claimant wrote to the respondent on 24 July 2008 and asked for the purpose of the meeting and that it should be held on a neutral venue.


  1. The respondent replied on 31 July 2008 explaining that the purpose of the meeting was to deal with the claimant’s request for an appeal against dismissal and lodging of a grievance and asked her where she proposed as a neutral venue.


  1. An appeal meeting against the claimant’s dismissal or to deal with her grievance was not held as the claimant did not respond to the respondent’s letter of 31 July 2008.


  1. The respondent had not consulted or discussed with the claimant her redundancy before the announcement of it was made to her by letter of 13 February 2008.


  1. Whilst the claimant was aware that the new business was to commence and that the existing business was to close the claimant denies that she was offered to rent a chair in the new business as the respondent asserts. The tribunal is unable to decide which of these accounts is correct, as there is no objective evidence which favours one account or the other.


  1. The claimant continued to receive her maternity benefit up until 28 March 2008. She has not returned to work since then and is not available for work because she is looking after her new baby son.


THE LAW


5. (i) To establish that a dismissal is not unfair an employer must establish the reason for the dismissal and that it was one of the statutory reasons that can render a dismissal not unfair (Article 130(1) and (2) the Employment Rights (Northern Ireland) Order 1996).


(ii) If an employer satisfies both of the above requirements then whether the dismissal was unfair or not depends on whether in the circumstances the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee (Article 130(4) Employment Rights (Northern Ireland) Order 1996).


(iii) The statutory dismissal and disciplinary procedures apply to dismissals on the basis of redundancy (Harvey on Industrial Relations and Employment Law D1 [1666]).


(iv) To comply with the statutory dismissal procedure an employer must;-


(a) send to the employee, in writing, the circumstances which lead him to contemplate dismissing the employee, and


(b) invite the employee to a meeting to discuss the matter, and


(c) convene a meeting before the action is taken, and


(d) before the meeting takes place inform the employee of the basis for the grounds included in the statement at 5(iv) (a) above, and ensure that the employee has had a reasonable opportunity to consider his response, and


  1. inform the employee of the outcome of the meeting and notify him of his right of appeal, and


(f) invite the employee to a further meeting if he wishes to appeal, and


  1. inform the employee of the outcome of the appeal (the Employment (Northern Ireland) Order 2003 Schedule 1, Part 1, Chapter 1, 2 and 3).


(v) An employee will be regarded as unfairly dismissed if the statutory dismissal procedure has not been completed and the non-completion is wholly or mainly attributable to the employer’s failure to comply with its requirements (Article 130A the Employment Rights (Northern Ireland) Order 1996).


(vi) Subject to Article 130A(1) an employer’s failure to follow a procedure in relation to dismissal shall not be regarded for the purposes of Article 130(4) of the Employment Rights (Northern Ireland) Order 1996 as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he followed the procedure (Article 130A(2) the Employment Rights (Northern Ireland) Order 1996).


  1. Where an employee is regarded as unfairly dismissed by virtue of Article 130A and the basic award compensation is less than four weeks pay it shall be increased to four weeks pay unless the tribunal considers that such an increase would be unjust to the employer (Article 154(1A) and (1B) the Employment Rights (Northern Ireland) Order 1996).


  1. Where the statutory dismissal procedure is applicable and the procedure was not completed and that non-completion is mainly or wholly the responsibility of the employer the tribunal shall increase any award by 10% and may if it considers it just and equitable, in all the circumstances, increases it by an amount not exceeding 50%. (Article 17(3) The Employment (Northern Ireland) Order 2003).


  1. The increase of between 10% and 50% may be disregarded if there are exceptional circumstances which would make the awarding of the increase unjust or inequitable to the employer. (Article 17(4) The Employment (Northern Ireland) Order 2003).


  1. It is unlawful to discriminate against a woman on the grounds of her pregnancy or maternity leave (Article 5A Sex Discrimination (Northern Ireland) Order 1976).


  1. Discrimination on the grounds of pregnancy or maternity leave is to treat a women less favourably than an employer would treat her had she not become pregnant or not been on maternity leave (Article 5A(1) of the Sex Discrimination (Northern Ireland) Order 1976).


  1. It is for the claimant who complains of discrimination on the grounds of pregnancy or maternity leave 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 Part III on which by virtue of Article 42 or 43 of the Sex Discrimination (Northern Ireland) Order 1976 or is to be treated as having committed such an act of discrimination against the claimant (Article 63A Sex Discrimination (Northern Ireland) Order 1976).







APPLICATION OF THE LAW AND FINDINGS OF FACT TO THE ISSUES


6. (i) The tribunal is satisfied that the respondent has shown the reason for the claimant’s dismissal (redundancy) and that that reason is one of the statutory reasons that can render a dismissal fair.


(ii) The statutory dismissal procedure was not completed. The respondent did not complete Step 1 by setting out the alleged circumstances in writing which lead it to contemplate dismissing the claimant. Nor was Step 2 completed. In the absence of the written statement the respondent could not give the basis for the grounds set out in the statement.


  1. The claimant did not re-arrange the appeal hearing. However as the respondent had not completed the statutory dismissal procedure at an earlier stage the claimant had the option of not continuing with the procedure.


  1. The non-completion was wholly or mainly attributable to the respondent’s failure.


  1. Accordingly the respondent’s failure to complete the statutory dismissal procedure amounts to an automatic unfair dismissal under Article 130A of the Employment Rights (Northern Ireland) Order 1996.


  1. The tribunal finds that the claimant’s entitlement to a basic award should be increased from ½ a week’s pay to four week’s pay by virtue of Article 154(1A) of the Employment Rights (Northern Ireland) Order 1996.


  1. There was no evidence before the tribunal on behalf of the respondent which would persuade it that the increase in the amount of the basic award would result in injustice to the employer.


  1. The tribunal increases the amount of the basic award by 10%, pursuant to Article 17(3) of the Employment (Northern Ireland) Order 2003. It does not consider it just and equitable in all the circumstances to increase that amount further. Nor does it consider that there are exceptional circumstances which would make the increase of 10% unjust or inequitable.


  1. In considering whether the claimant’s dismissal is unfair under Article 130 of the Employment Rights (Northern Ireland) Order 1996 the tribunal is persuaded that the respondent did not act reasonably. The respondent failed to consult with the claimant about the redundancy prior to making the claimant redundant. No reason has been advanced to the tribunal as to why it did not consult. Accordingly the dismissal of the claimant is unfair by virtue of Article 130 of the Employment Rights (Northern Ireland) Order 1996.


  1. There was not any evidence before the tribunal that could have supported a claim for a compensatory award.


  1. The claimant is therefore entitled to a basic award of four weeks’ wages for the automatic unfair dismissal under Article 130A of the Employment Rights (Northern Ireland) Order 1996 which the tribunal measures at £464.16 (£105.49 x 4 = £421.96 + £42.20 (10%)).


  1. The tribunal is not persuaded that the claimant suffered discrimination on the grounds of her pregnancy or maternity leave. In so concluding the tribunal had regard to the following matters;-


(a) All employees of the respondent company were made redundant when the business ceased trading.


    1. Three persons formerly employed by the respondent, including the claimant, were not involved in the new business Hair @ Eden.


(c) There was no suggestion before the tribunal that either Louise Adamson or Amanda Kingham was dismissed for a reason other than the cessation of trading of the respondent.


(d) The claimant relied on the respondent’s failure to keep her informed about developments within the respondent company as evidence of less favourable treatment of her once she became pregnant. She alleged that prior to her pregnancy she had been informed of developments within the company.


In the claimant’s own evidence she informed the tribunal about information given to the claimant by the respondent in January 2008 during her maternity leave about developments or proposed developments within the company. The tribunal is not persuaded that the claimant suffered less favourable treatment by not being kept informed of developments within the respondent company.


(e) It seems therefore that the claimant’s dismissal was not on the grounds of her pregnancy or maternity leave but rather by reason of the cessation of trading of the respondent company which affected all its employees.


(f) Accordingly the claimant’s claim for discrimination on the grounds of her pregnancy and/or maternity leave is dismissed.


7. It is clear from the evidence before the tribunal that the claimant had complied with the statutory grievance procedure.


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




Chairman:


Date and place of hearing: 27 October 2008, Belfast.



Date decision recorded in register and issued to parties:

7.

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