Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2008/1359_07IT.html
Cite as: [2008] NIIT 1359_07IT, [2008] NIIT 1359_7IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1359/07

CLAIMANT: Lyndawn Rita

RESPONDENT: Herbal Restaurants Limited

DECISION

The unanimous decision of the tribunal is that the claimant was discriminated against by the respondent on account of her sex but that she was not discriminated against on account of her race. The tribunal award compensation for injury to feelings arising out of sex discrimination, amounting to £2,000.00, to be paid to the claimant by the respondent.

Constitution of Tribunal:

Chairman: Mr Cross

Panel Members: Ms Hamilton

Mr Gray

Appearances:

The claimant represented herself before the tribunal

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

The Evidence

The claimant read a witness statement and gave evidence on her own behalf. The following witnesses read witness statements and gave evidence on behalf of the respondent:- Paul Owens, Margaret Craughwell, Patricia Mackin, Robert Bell, Russell Stock, Lisa Huyton and Jacqueline Holland.

Findings of Fact

The tribunal found the following facts. The claimant who was from the Philippines had been employed as a Restaurant Manager in the respondent's Kentucky Fried Chicken chain of restaurants (hereafter KFC), since January 2006. In October 2006 the claimant discovered that she was pregnant. She notified the respondent's area manager, for the area in which she worked, on a slip of paper, that she was pregnant. The date of this notification is not known exactly but the tribunal believe that it was in the last week of October or the first week of November 2006.

A copy letter dated 28 November 2006, from the claimant's GP Dr McIvor, to "whom it may concern", was produced to the tribunal. The claimant gave evidence that this letter was handed by her to the claimant's manager Mr Owens, soon after she received it from the GP. The letter was handed over in the respondent's Lisburn Road shop, in which she worked. Mr Owens denied ever receiving this letter. The letter stated, that on the date of the letter, the claimant was 14 weeks pregnant. The tribunal cannot determine what exactly happened to this letter but it does show that the claimant was 9 or 10 weeks pregnant when she told her area manager Ms Craughwell of the news.

Ms Craughwell had a discussion with the claimant and told her to look after herself and not to lift heavy items, or bend and to take regular breaks. She also spoke to the restaurant manager Mr Owens to reinforce these directions and to make sure that the other staff on the premises were informed. At this stage, in early November no risk assessment was carried out on the claimant's work, except for this discussion which the claimant had with Ms Craughwell.

There was certain conflicting evidence before the tribunal as to whether or not the staffing in the restaurant was changed when the respondents became aware of the claimant's pregnancy. The respondent's manager Mr Owens explained that the restaurant was run on two shifts of two people, from opening time of 12 mid day to 12 mid night. Once the claimant's pregnancy was announced an extra person was employed to assist the claimant and that person did a split shift which straddled the two regular shifts. In looking at the shift records the tribunal are not convinced that this split shift was commenced at the claimant's pregnancy, as it appears to have existed at other busy times prior to early November 2006. The tribunal find that it was probably the intention of Mr Owens, in making up his rota of timings for his staff, to avoid the claimant having to deal with heavy deliveries and cooking on the hot fryers, but this did not always work out. The consequence was that the claimant did have to do a lot of standing and cooking although she was able to have help in dealing with most of the heavy deliveries.

During November and December the claimant worked in the Lisburn Road premises mostly with the aid of the split shift worker but on some days without that help. At the end of December Ms Craughwell was approached by some of the other members of staff at the Lisburn Road premises who complained that the claimant was not "pulling her weight" in the restaurant. She would, according to the other staff, sit in the office doing the paper work and only come out on occasions when the counter was busy to lend assistance.

Ms Craughwell consulted with the respondent's Human Resource Manager, Ms Huyton and both of them held a meeting with the claimant, on 2 January 2007. The claimant asked to be suspended on full pay for medical reasons. This was not acceptable to Ms Huyton who decided to arrange for the claimant to be moved to the respondent's Castle Court restaurant. This move occurred at the beginning of January and as a result her work load was lighter as she was only on the serving position and worked during the daytime hours only.

At the meeting on 2 January Ms Huyton saw the letter of 28 November, referred to in paragraph 3 above, for the first time. Ms Huyton arranged for a risk assessment to be carried out on the next day by Mr Slack, an independent advisor on Health and Safety issues to the respondents. Mr Slack carried out the assessment as arranged and the record of this was before the tribunal. Mr Slack noted that the claimant's duties should not involve manual handling of materials and that she should have a rest break every hour. Furthermore she should have no late shifts. These recommendations were complied with in the Castle Court premises.

During the month of January the claimant with the consent of her Doctor went to the Philippines and returned with her young son who had been living there. These flights had to be concluded before the claimant passed six months of her pregnancy.

The claimant gave birth to twins in the 27^th week of her pregnancy on 19 February 2007. Because the twins were so premature the birth had to take place in Dublin as there were not sufficient incubators in Belfast. This of itself proved very difficult for the claimant and her husband as they had no friends in Dublin and the claimant's husband could not travel there for immigration reasons. Very sadly the boy twin died and so the claimant had a great deal of sadness and trauma to deal with. The claimant spoke to Ms Holland of the respondent's payroll staff on the telephone from Dublin. Ms Holland explained to the claimant that she could not commence the claimant's maternity pay and sick pay due because of the claimant's admission to hospital some weeks before the birth, until the claimant sent in certain forms that had to be issued by her GP. The claimant had great difficulty in organising these documents whilst she was in Dublin and the relevant form to allow the respondent to pay sickness benefit and statutory maternity pay to the claimant was only received by the payroll role office on 7 March.

On her return to work with the respondent the claimant instituted a grievance claim. She stated that she had not been given a risk assessment within a reasonable time of notifying the respondent of her pregnancy and furthermore that her rightful claim for maternity pay had been impeded by the actions of some members of staff. This grievance was investigated by the respondent and ultimately rejected.

The Law

The Sex Discrimination Claim

9 Under the provisions of Article 3 of the Sex Discrimination Order (Northern Ireland) 1976

"3(1)…….a person discriminates against a woman if-

(a) on the grounds of her sex, he treats her less favourably than he treats or would treat a man…

8(2) 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) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

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

52(1) Nothing in the following provisions, namely-

(a) Part III;

shall render unlawful any act done by a person in relation to a woman if-

(I) it was necessary for that person to do it in order to comply with a requirement of an existing statutory provision concerning the protection of women; or

(II) it was necessary for that person to do it in order to comply with a requirement of a relevant statutory provision (within the meaning of Part II of the Health and Safety at Work (Northern Ireland) Order 1978) and it was done for the purpose of the protection of the woman in question (or of any class of women that included that woman)."

The said Order goes on in Article 52 (2) to elaborate on the protection of women by stating that Article 52 was aimed at protecting women as regards pregnancy or maternity or other circumstances giving rise to risks specifically affecting women.

10 The Management of Health and Safety at Work Regulations (Northern Ireland) 2000, (hereinafter "the Regulations"), deal with the protection of workers and the carrying out of risk assessments. The relevant Regulations provide:

"Risk Assessment

3(1) Every employer shall make a suitable and sufficient assessment of –

(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and

(b)…………………

For the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the appropriate statutory provisions."

"3(6) Where the employer employs five or more employees, he shall record-

(a) the significant findings of the assessment; and

(b) any group of his employees identified by it as being especially at risk."

"Risk assessment in respect of new or expectant mothers

16(1) where-

(a) the persons working in an undertaking include women of childbearing age; and

(b) the work is of a kind which could involve risk, by reason of her condition, to the health and safety of a new or expectant mother, or to that of her baby, from any process or working conditions, or physical, biological or chemical agents, including those specified in Annexes 1 and 2 of Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers ………….

The assessment required by regulation 3(1) shall also include an assessment of such risk."

(2) Where in the case of an individual employee, the taking of any other action the employer is required to take under the relevant statutory provisions would not avoid the risk referred to in paragraph (1) the employer shall, if it is reasonable to do so, and would avoid such risks, alter her working conditions or hours of work.

(3) If it is not reasonable to alter the working conditions or hours of work, or if it would not avoid such risk, the employer shall, subject to Article 99 of the [Employment Rights (Northern Ireland) Order 1996] (right to offer of alternative work), suspend the employee from work for so long as is necessary to avoid such risk."

"Notification by new or expectant mothers

18(1) Nothing in paragraph (2) or (3) of regulation 16 shall require the employer to take any action in relation to an employee until she has notified the employer in writing that she is pregnant……."

In the English Employment Appeal Tribunal case of Hardman v Mallon [2002] IRLR 516 His Honour Judge J McMullan QC held that the failure of an employer to carry out a risk assessment on a pregnant employee when she has asked for it was discriminatory. He said at Paragraph 14 "It is of course a duty on all employers to carry out a risk assessment but in respect of a pregnant worker a failure to carry out such a risk assessment, in our judgment, is discrimination." Judge McMullan went on to point out how the specific requirements laid down by, (in Northern Ireland), Article 52 of the Sex Discrimination (Northern Ireland) Order 1976), should be taken into account by a tribunal. It was not necessary to compare treatment to a comparable male, for a tribunal to find discrimination, where special treatment is laid down for pregnant females, as in the Regulations.

The Race Discrimination Claim

The claimant claimed that she had been discriminated against in regard to the delay in receiving her maternity pay because of her race. Her claim is under Article 6 of the Race Relations (Northern Ireland) Order 1997.

"6(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Northern Ireland to discriminate against that employee-

(a)…………………..

(b)…………………..

(c) by dismissing him, or subjecting him to any other detriment."

Article 52A provides that if a claimant proves facts, from which a tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination, then, the tribunal shall uphold the claimant's complaint, unless the respondent can prove that he did not act in a discriminatory manner.

Decision

This tribunal has to consider, whether the discussion at the end of October or beginning of November 2006, which Ms Craughwell had with the claimant, after she received the written notice that the claimant was pregnant, was a risk assessment for the purposes of the Regulations? The tribunal is of the unanimous opinion that the conversation and advice offered by Ms Craughwell, cannot be considered to be a risk assessment as required by the Regulations. The assessment was never recorded, as is required in the Regulations and it did not comprise "a suitable and sufficient statement" of the important factors which should have been considered, although it did touch on some of these. A risk assessment has, in the opinion of the tribunal, to consider the particular risks associated with the employee's job in the context of the premises where that job is being done. The tribunal hold that this was not done in the informal discussion that Ms Craughwell had with the claimant, at the end of October or early in November 2006.

A proper risk assessment was however carried out and recorded in the appropriate way when the claimant saw Mr Slack on 3 January 2007. However this was some considerable time after the claimant announced her pregnancy to the respondent. Two months had elapsed before the proper risk assessment was carried out and the tribunal hold that that was an unreasonable length of time, where a pregnancy was involved.

The respondent referred the tribunal to the recent case of Stevenson v JM Skinner & Co [2008] UKEAT 0584_07_0603. Again this was an English Employment Appeal Tribunal chaired by Judge McMullan. The judgment refers to the earlier case of Hardman v Mallon but in this more recent case, a risk assessment was carried out almost immediately after the pregnancy was announced to the employer. The risks associated with the pregnancy were the only matters discussed by the participants at the meeting and the results were recorded. That appeal tribunal held that the statutory requirements had been met in that case. The risk assessment meeting in that case was on a par with that carried out in the current case, belatedly by Mr Slack.

This tribunal having held that the lengthy delay in carrying out the risk assessment was of itself sex discrimination, went on to consider whether the claimant had suffered any detriment as a result. The tribunal having considered this matter do hold that the claimant did suffer detriment. Although the good advice offered by Ms Craughwell did go some way to helping the claimant work through her early part of her pregnancy, the fact that she had not been properly assessed did cause the claimant to suffer hardship as the pregnancy progressed. There were not always people on duty with her to share the cooking with her and consequently she had to work in the heat of the kitchen. Because her risk assessment had not been done other members of staff thought that she was dodging her share of the work and hiding in the office with her "paper work", this led to unpleasantness in the work place and resulted in the clamant being transferred to the lighter duties in Castle Court. Had the assessment been carried out in a more timely manner this advantageous move might have happened sooner.

Concerning that part of the claimant's claim that alleges race discrimination the tribunal find no evidence whatsoever to substantiate this. The claimant was keen to work a long shift pattern as she was keen to earn money. When she became pregnant she was treated with all due consideration and her colleagues did as much as they could to assist her, at the same time helping her to keep up her hours. The one mistake made by the respondent was the failure to carry out the risk assessment in a timely manner, but this was not because of any reason connected with race. When her twins were born early, allsorts of problems arose in the hospitals but none of these could be placed at the door of the respondent. Again the employees of the respondent did what they could to explain the regulations governing the payment of sick and maternity pay to the claimant. Because of the considerable difficulties which the claimant encountered and which the tribunal do not underestimate, she did suffer a delay in getting payment of money due to her. It was however all paid to her and she is still in the employment of the respondent. The tribunal is unanimous in dismissing the race discrimination claim as there is no evidence before the tribunal that any discrimination of this type occurred.

In considering the compensation that should be paid to the claimant by the respondent for their failure to deal properly with the risk assessment the tribunal are mindful that the only claim being made by the claimant is for injury to feelings. The tribunal are satisfied that there is no evidence before it of a medical nature that links the tragic loss of the claimant's boy twin with her work in the Lisburn Road premises of the respondent. Indeed the pregnancy was going well enough for the claimant's Doctor to allow her to fly home to the Philippines in January after she had transferred to Castle Court. The tribunal bear in mind the size of the respondent company, with over one thousand employees and a human resources staff available to deal with matters of this kind. Bearing all these matters in mind and mindful of the guidance given to tribunals in the case of Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102, the tribunal award to the claimant £2,000.00 compensation for injury to feelings. The tribunal having considered the matter of interest up to the date of this decision do not award this as in the tribunal's view it would not be appropriate.

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

Chairman:

Date and place of hearing: 27- 28 May 2008, Belfast

Date decision recorded in register and issued to parties: