Title: FAIR EMPLOYMENT TRIBUNAL
Author: irtusetup
Last saved by: joe.ury
Company: DED

THE INDUSTRIAL TRIBUNALS

CASE REF: 2552/06

CLAIMANT:			Michelle Graham

RESPONDENT:		Philip Babb (Millisle Newsagents)

DECISION
The unanimous decision of the tribunal is as follows:-

 1.	The claim is amended to include a claim for failure to provide written statement of employment and failure to provide itemised payslips. This part of the claim is adjourned as set out in the decision.  

 2.	The claimant was discriminated against by the respondent on the grounds of her sex.

 3.	The claimant was not unfairly dismissed by the respondent.

 4.	The tribunal award the following compensation:-

	(a)	in respect of holiday pay the tribunal award £450.00.

	(b)	in respect of sex discrimination the tribunal award £1,000.

Constitution of Tribunal:
Chairman:		Mrs Cooper

Members:		Mrs Gregg
			Mr Mitchell

Appearances:

The claimant was represented by Mr N Phillips, Barrister-at-Law, instructed by the Equality Commission.

The respondent did not enter a response and did not attend the hearing.

THE CLAIM

 1.	The claimant lodged a claim form dated 9 November 2006 received in the Office of the Tribunals on 17 November 2006.  The claimant in that claim form claimed unfair dismissal, sex discrimination and holiday pay.  The claimant confirmed that she seeks compensation in respect of unfair dismissal and not re-engagement as stated in her claim form.  No response was received from the respondent.

 2.	By letter dated 5 September 2007 the claimant wrote to the respondent to raise a grievance under the Statutory Dispute Resolution Procedures in relation to the respondent’s failure to provide a written statement of employment particulars and failure to provide itemised payslips in breach of the Employment Rights Order (Northern Ireland) 1996.  No reply was received from the respondent.  By letter dated 5 October 2007 the representative of the claimant applied to have the claim form amended to include a claim in respect of the respondent’s failure to provide the claimant with written statement of her employment particulars and itemised payslips.

 3.	The tribunal heard evidence from Sarah Boreland a technical officer from Inland Revenue, the claimant and Janice Graham the claimant’s sister.

ISSUES

4.	The issues to be determined by the tribunal were as follows:-

(i)	Should the claim form be amended to include a claim for failure to provide written statement of her employment and itemised payslips?

(ii)	Was the claimant dismissed by the respondent?
	
(iii)	If so was the claimant unfairly dismissed by the respondent?
	
(iv)	Was the claimant discriminated by the respondent on the grounds of her sex?
	
(v)	Was the claimant entitled to unpaid holiday pay from the respondent?

 5.	Amendment of the claim to include itemised payslips and written statement of employment.

	(i)	The claimant had not claimed these issues in her claim form originally.

	(ii)	The claimant wrote to the respondent in September 2007 raising a grievance in respect of these matters.  The respondent did not reply to this correspondence.  

	(iii)	The claimant waited 28 days in accordance with the legislation before applying to the tribunal to have her claim amended.

	(iv)	The claim form was presented within the time limits for presenting a claim in respect of itemised payslips and written statement.
		
	(v)	The amendment requested while raising new claims did not raise significant matters of substance.
		
	(vi)	The tribunal took into account the respondent’s failure to reply to the grievance raised in respect of these matters and the fact that the respondent has taken no part in the proceedings.  The tribunal found that in balancing the injustice in this case that it is appropriate to allow the amendment of the claim and that the claim is amended to include claims for both itemised pay statements and written statement of employment.
			
(vii)	The tribunal found that the respondent has not had an opportunity to enter a response in respect of this claim as the amendment has been granted at the substantive hearing.  The tribunal found that before considering the merits of this amendment the issues of itemised pay statements and written statement of employment should be adjourned until the respondent has been notified of this amendment and given an opportunity to reply.  The respondent will be given 28 days to enter a response.  The case will then be re-listed to enable the tribunal to consider the merits of this application for itemised payslips and written statement of employment only.

 6.	Was the claimant dismissed by the respondent?

	(i)	The claimant commenced employment with the respondent on 30 January 2006 as a sales assistant earning £225 per week net for a 40 hour week.

	(ii)	The claimant worked for the respondent and commenced a relationship with him at the end of May 2006.  She became pregnant with the respondent’s child and informed him of this on 21 June 2006.  The relationship ended at the end of July 2006 on “quite good terms” as stated by the claimant.

	(iii)	The claimant was ill for some weeks with morning sickness which affected her ability to complete her shifts and the claimant asked the respondent to cover shifts for her.  

	(iv)	On 12 August 2006 the claimant had been sick all day and phoned another employee to say that she was unable to finish her shift.  She contacted the respondent who did not reply and a fellow staff member covered her shift to allow her to go home early.  She later made contact with the respondent who agreed to go into work.

	(v)	The claimant was advised by her doctor to take a week off.  The claimant contacted the respondent regarding sick pay and he stated that he would give her wages to her sister Janice who was also employed by him.

	(vi)	Janice Graham asked for the claimant’s wages at the end of the week and the respondent denied any knowledge of the sickness payments for the claimant and did not make any payment to her.

	(vii)	The claimant did not return to work she continued to be sick and was losing weight.  The claimant telephoned the respondent who told her that he was not sure if she was entitled to any payments and then refused to make payments saying that she did not have sufficient national insurance contributions.  The claimant contacted the Citizen’s Advice Bureau who told her that this was incorrect and she ultimately received her statutory sick pay from the Inland Revenue.  The respondent continued to refuse to make any statutory sickness payments to the claimant.

	(viii)	The claimant wrote to the respondent raising a grievance with him on 12 October 2006 she received no reply to that correspondence.  The claimant raised the issue of a change to her working circumstances in this letter because she was advised that the respondent had informed Inland Revenue that she was offered part-time work.  The claimant was not offered part-time work by the respondent.

	(ix)	The respondent failed to return the necessary forms to the Inland Revenue for the claimant to receive her sick payments and the matter was ultimately resolved by a member of Inland Revenue staff attending the respondent’s premises to have the forms signed by the respondent personally.

	(x)	The claimant was uncertain whether she had been unfairly dismissed because the information she had received from her employer that her employment was terminated came indirectly from the Inland Revenue and there was no direct contact from the respondent.

	(xi)	The respondent has taken no part in the proceedings brought by the claimant.

	(xii)	The claimant has had no further contact with the respondent.  

(xiii)	The tribunal found that the respondent did not in fact dismiss the claimant he did fail to pay statutory sick pay to her and failed to respond to correspondence and failed to make any contact with her at all.  The grievance raised by the claimant on 12 October 2006 refers to statutory sick pay and sex discrimination.  The claimant also states “inform me of any changes that have been made to my working circumstances in writing before 26 October 2006”.
			
There was no reply to this.

In the claim to the tribunal the claimant stated “I am unsure if I have been unfairly dismissed because I have never been informed by my employer that I was sacked although my employer has told Inland Revenue I no longer work for him.  I have been off work since 13 August 2006 and as far as I know I am still employed although I have been ill due to sickness in pregnancy.

At paragraph 12.1 the claimant reiterated that her claim relates to sex discrimination.  

The tribunal found that while it may have been the respondent’s intention to dismiss the claimant, this was never communicated to her.  There was no response to her grievance letter and in these circumstances the claimant could have presented a possible claim for constructive dismissal on the basis that the respondent had breached an essential contractual obligation by his failure to make statutory sick payments to her.  She did not do so.  The claimant’s statement at paragraph 7.1 of the claim form “as far as I know I am still employed” indicates that there was in fact no dismissal.  In these circumstances the tribunal found that they were unable to state that the claimant was dismissed by the respondent because this in fact did not happen.  The claimant is therefore not entitled to present a claim of unfair dismissal.  The tribunal found that this was not a satisfactory situation in view of the respondent’s treatment of the claimant and his failure to communicate with her.  However the claimant took no steps to raise a grievance in respect of a possible constructive dismissal claim.  The tribunal were therefore unable to consider such a claim in the absence of any action being taken by the claimant.  For these reasons the tribunal found that the claimant was not dismissed by the respondent.

HOLIDAY PAY

 7.	The claimant did not receive any holiday pay during her employment with the respondent.  She worked for the respondent for six and a half months and is therefore entitled to two weeks holiday pay.  

THE APPLICABLE LAW

 8.	(i)	The claim for holiday pay is considered by virtue of Regulation 14 of the Working Time Regulations.

	(ii)	The claim for failure to provide an itemised pay statement and failure to provide a statement of particulars of her employment are considered under Regulation 43 of the Employment Rights (Northern Ireland) Order 1996.

	(iii)	The claim for sex discrimination is considered by virtue of the provisions of the Sex Discrimination (Northern Ireland) Order 1997.

	(iv)	The claim for unfair dismissal is considered under the provisions of Article 127 of the Employment Rights (Northern Ireland) Order 1996.

DECISION

 9.	(1)	Sex Discrimination

		The tribunal considered whether the claimant had been discriminated against on the grounds of her sex.  The tribunal found that but for the pregnancy the claimant would not have been treated in the manner which she was by the respondent.  The tribunal found that the pregnancy related sickness was a substantial cause of the claimant’s treatment by the respondent when he failed to communicate with her and was prepared to leave her with no source of income in spite of being made aware that she was entitled to statutory sick pay and also knowing that she was pregnant with his child the tribunal found that this treatment of her subjected her to a detriment.  The tribunal found that the pregnancy related sickness was a substantial cause of the claimant’s treatment by the respondent the tribunal were satisfied that had she not become pregnant and suffered from morning sickness requiring her to remain absent from work she would not have been treated in this manner by the respondent.  The tribunal were therefore satisfied that the respondent discriminated against the claimant on the grounds of her sex by his failure to make payments to her and his failure to communicate with her.

	(2)	Unfair Dismissal

		The tribunal found that the claimant was prevented from bringing a claim of unfair dismissal by virtue of the provisions of Article 127 of the Employment Rights (Northern Ireland) Order 1996 because her employment was not terminated by the respondent and she did not terminate the contract herself.  The tribunal in particular noted the content of a letter dated 5 September 2007 from Patricia Cosgrove of the Equality Commission to the respondent which stated at paragraph 2 “please note that the claimant Miss Graham has never been advised that her employment has been terminated and, therefore, continues to be an employee of yours.”  The claim for unfair dismissal is therefore rejected by the tribunal.

(3)	Holiday Pay

The claimant is entitled to £450.00 in respect of unpaid holiday pay.

	(4)	Injury to Feelings

		The tribunal took into account the guidance set out in Vento -v- The Chief Constable of West Yorkshire Police.

	The tribunal considered the length of the claimant’s employment and the nature of her relationship with the respondent.  We took into account the fact that during her earlier employment there were no difficulties between the parties.  The tribunal noted that until the claimant went off sick her relationship with the respondent, despite the ending of their personal relationship, appeared to have been amicable.  There was no evidence of any significant impact for the claimant in terms of her health resulting from her treatment by the respondent.  Rather her worries were more financially based due to the respondent’s failure to pay her her statutory sick pay.  In these circumstances the tribunal found that an award for injury to feelings should be in the lower end of the Vento guidelines and assessed that compensation at £1,000.

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.  Your attention is drawn to the notice below which forms part of the decision of the tribunal. 

Chairman:

Date and place of hearing:	11 October 2007, Belfast.

Date decision recorded in register and issued to parties: