Industrial Tribunals Northern Ireland Decisions

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Cite as: [2009] NIIT 24_9IT, [2009] NIIT 24_09IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 00024/09

CLAIMANT: Angela Cummins

RESPONDENT: Paul Lennon t/a Glengormley Post Office

DECISION

The tribunal finds the claimant’s claims for sex discrimination and unfair dismissal well-founded and orders the respondent to pay to the claimant compensation of £3,393.03 made up as follows:-

1. £3,000 for injury to feelings, with interest on that sum as of 10 November 2009 of £284.61;

2. Basic award for unfair dismissal £108.42.

Constitution of Tribunal:

Chairman: Ms M Sheehan

Panel Members: Mr B Irwin

Mr J Welsh

Appearances:

The claimant was represented by Ms Caroline Dunlop, Solicitor of Higgins Hollywood Deazley, Solicitors.

The respondent was represented by Mr Conor Hamill, Barrister-at-Law, instructed by Worthingtons, Solicitors.

SOURCES OF EVIDENCE

1. The tribunal heard evidence from the claimant and her witness Hayley Davidson and from the respondent. The tribunal also received three bundles of documents, one identified as C1 consisting of 77 pages, a further bundle of discovery from the claimant, a bundle of discovery from the respondent and a four page document produced by the respondent at hearing.

THE CLAIM AND DEFENCE

2. The claimant contended that prior to returning to her employment before the end of her maternity leave she contacted the respondent to discuss an earlier return to work on 31 August 2008 and 1 September 2008. During a conversation with the respondent on 1 September 2008 she was informed that her usual hours would not be available, that the claimant had not been in touch during her maternity leave and a query was raised with her as to whether she had a contract of employment with the respondent. The respondent also failed to respond to a text the claimant sent which the claimant contended meant she was entitled to treat herself as dismissed and that she had suffered sex discrimination on account of her pregnancy. The respondent in the notice of appearance denied that the claimant was treated in a manner entitling her to treat herself as dismissed. The respondent denied that any sex discrimination had occurred. While the respondent accepted there were phone calls between the parties on 31 August 2008 and 1 September 2008 he disputed that he questioned anything other than the claimant’s request to return early to work. Further he contended that he indicated to the claimant he would confirm her scheduled hours of work nearer her return date, namely, the 12 October 2008.

THE ISSUES

3. It was agreed at the outset of the hearing that the issues to be determined by the tribunal were:-

(i) whether the claimant was constructively dismissed on the basis of the alleged conduct of the respondent during the various telephone communications between the respondent and the claimant on 31 August 2008 and 1 September 2008; and

(ii) whether the respondent’s conduct and actions between 31 August 2008 and 4 September 2008 amounted to sex discrimination.

FINDINGS OF FACT

The tribunal made the following findings of fact, having considered all the documents produced and hearing the evidence of the various witnesses.

4. The claimant whose date of birth is 22 May 1981 was employed on 20 August 2007 on a variable hours contract at the agreed hourly rate of £5.75 gross with the respondent Paul Lennon. Her employment was subject to satisfactory proof of eligibility for employment in the UK and references being provided in due course. The respondent is a small employer employing at any one time approximately six members of staff some full-time and some part-time. The respondent mainly employed female staff although on occasion he had employed three male members of staff during the time he had been a Post Master in Glengormley since 1998. The claimant was the first member of staff the respondent had employed who required maternity leave. The respondent openly admitted at hearing that he had little or no experience in Human Resources or Personnel matters. The respondent relied on a general service provider based in England to provide such personnel and HR facility known as HR4UK.com.

5. The company HR4UK.com required the respondent to furnish them with proof of address and eligibility of any proposed employee to work in the United Kingdom. There can be delay in this procedure being completed which was the explanation for the claimant receiving a letter from HR4UK.com dated 25 October 2007, after she had commenced employment with the respondent.

6. It was not in dispute between the parties that the claimant had failed to provide a copy of her birth certificate, being a document required to establish her eligibility for employment in the United Kingdom, at the time she tendered her resignation on 3 September 2008. While the respondent contended that the claimant’s obligation to provide a reference equally had not been complied with, the tribunal were not satisfied that the claimant had ever been advised by the respondent or HR4UK.com that her nominated referee had failed to provide the requisite reference. There was a total absence of any notes or correspondence in the possession of the respondent regarding this alleged failure on the claimant’s part to provide a reference.

7. Within three weeks of the claimant commencing employment with the respondent she disclosed to the respondent that she was pregnant. No immediate discussion regarding maternity leave or pay took place at that time. While it was the claimant’s fifth pregnancy, it was the first time she was in employment while pregnant.

8. The claimant in late October or early November 2007 requested from the respondent permission to commence her maternity leave early. The respondent was not happy to agree to the request due to business needs. The claimant by agreement postponed commencement of her maternity leave until 8 January 2008. Both parties established the claimant did not have the requisite service to receive statutory maternity pay from the respondent. Accordingly, the claimant obtained the requisite forms from the Social Security Agency regarding maternity allowance and produced them to the respondent for completion. The respondent completed the requisite forms which enabled the claimant to obtain statutory maternity allowance. These forms indicated the claimant’s entitlement to maternity allowance and that maternity leave would terminate on 11 October 2008.

9. The respondent utilised the centralised HR service provided through the Post Office by the company HR4UK.com for information regarding the management and the rights of his employees during maternity leave. However, either the service or its implementation by the respondent was deficient as nothing was provided by the respondent to the claimant in writing in respect of her entitlements or obligations regarding notification of maternity leave or statutory maternity payments. Equally the claimant was provided with no written communication regarding how and when to exercise her entitlement to return to work.

10. The tribunal accepted, on a balance of probabilities, that on the date that the claimant was leaving the respondent’s premises to commence her maternity leave that a comment was made by the respondent along the lines “If you have a job to come back to”.

11. The tribunal heard details of two visits by the claimant during the claimant’s maternity leave to the respondent’s business premises. The tribunal accepted that the respondent was only present on one of those visits. During that visit the respondent was involved with members of the public which may have explained him appearing distant to the claimant. On that occasion the respondent brought to the claimant’s attention that he was still awaiting a copy of her birth certificate to enable a written contract to be furnished to her. No mention of an outstanding reference was made to the claimant at this time. In the absence of any communication in writing from the respondent, the tribunal could not accept that the respondent did not agree with the claimant that the birth certificate could be provided when she was returning to employment at the end of her maternity leave.

12. During the claimant’s maternity leave she was in contact with Hayley Davidson on infrequent and irregular occasions. Having seen Ms Davidson and observed her demeanour in providing evidence to the tribunal, the tribunal found her to be a truthful and credible witness.

13. During the period of the claimant’s absence on maternity leave, there was a casualness in the respondent’s attitude towards his obligations and responsibility as an employer. This casual approach may have led him to make comments and observations regarding the likelihood of the claimant returning to her employment at the end of her maternity leave that a more prudent and experienced employer would not have made in the circumstances. Some of these comments were passed on to the claimant by Ms Davidson prior to her tendering her resignation.

14. On 31 August 2008 the claimant contacted Tracey Davidson to obtain the respondent’s mobile phone number. Ms Davidson provided the mobile phone number details to the claimant. The claimant on that same date contacted the respondent and indicated when he answered the phone that she wished to discuss with him returning to work at an earlier date to 12 October 2008. The respondent, not wishing to discuss this request on his day off and being involved in leisure activities, indicated to the claimant that she should ring him at work the following day.

15. There was conflict between the claimant and respondent as to the details of this phone call on 31 August 2008 and the subsequent phone call on 1 September 2008. The tribunal found it helpful to rely on the notes made by the parties in or about the relevant time and the evidence of Ms Davidson.

16. On Monday 1 September 2008 the respondent made contact with HR4UK.com regarding the procedure applicable to the claimant for her exercising a right or desire to come back early. The respondent made a note of the information that he was given which included the information that the claimant was required or should have provided eight week’s notice of her desire to return early to her employment from maternity leave.

17. While the tribunal heard conflicting evidence between the claimant and the respondent as to what was discussed between them on 1 September 2008, having heard and observed the witnesses giving their evidence, the tribunal is satisfied on the balance of probabilities that the claimant did not make a request for 16 hours work over two days. The tribunal conclusions reflect the absence of any mention of same in the respondent’s letter to the claimant dated 4 September 2008. The domestic circumstances of the claimant, as outlined at hearing, would indicate such an arrangement would not be conducive to her domestic arrangements. The tribunal accepted the claimant’s evidence that during this conversation the respondent queried what hours, if any, he would have for her when she returned from maternity leave, that she could not return early from her maternity leave, and he queried whether or not she had a contract of employment given there was documentation outstanding which she had been requested to provide on earlier occasions. The conversation ended with the respondent making a commitment that the claimant would be contacted later regarding the situation. There is no doubt that the claimant assumed that the respondent would be contacting her later that evening. When the claimant heard nothing from the respondent she texted and rang him on his mobile phone. The respondent sent the claimant a text enquiring “What’s up?” and indicating that he was busy presently. The claimant replied with a text indicating “You were suppose to ring me, I need to know what’s happening with my hours cause I’ll need to find other work if there’s none there”. The claimant received no response to this text and the respondent admits he decided not to respond to that text.

18. The respondent’s deliberate decision not to respond to the claimant’s text is difficult to understand in particular where there was a reference to “need to find other work if there is none there” unless the respondent knew such a comment had been made by him to the claimant. If this was an inaccurate reference to the conversation the respondent had with the claimant, it appeared to the tribunal reasonable for the respondent to have responded by querying such an incorrect reference. The text sent by the claimant on the evening of 1 September 2008 only made sense if the earlier conversation between the parties did include, comments such as “Do we have a contract with you?” and that the respondent “would have to look at what hours if any” he had for the claimant.

19. The claimant contacted the Labour Relations Agency at a date earlier to 31 August 2008 to ascertain her rights and obligations regarding returning to work early from maternity leave. It is possible the claimant misunderstood the information provided particularly that returning early from maternity leave was at the discretion of the parties. It appears the claimant understood or believed that returning early from maternity leave was at her discretion as opposed to by agreement with the respondent. The claimant tendered her resignation by way of letter dated 3 September 2008 to the respondent. The tribunal found it noteworthy that the respondent’s letter dated 4 September 2008 accepting the claimant’s resignation did not dispute the claimant’s references or assertions that she alleged he made to her, comments such as “failed to notify him of her intention to return to work” and that there was a question mark over whether she had a contract with the respondent. The only matter upon which he seemed to challenge the accuracy of her letter of resignation concerned the discussion on Monday 1 September when she had enquired according to the respondent about “your hours of work”. The claimant on her own evidence extended her resignation based “on the telephone call on 1 September 2008 and nothing else”.

20. Since September 2008 the claimant has not been in any other employment. The claimant made no claim for benefits as her husband was in employment and the family received tax credits which were in excess of what she could have earned by way of salary with the respondent. The claimant indicated she made no formal applications for any employment but merely called to a number of places leaving her contact details at various premises. She did not fill in any application forms for any post of any nature. Prior to the claimant’s dismissal her contract was for variable hours and accordingly her average weekly wage had to be calculated over the 13 week period for which she had received salary. The tribunal calculated that her average weekly pay for the 13 full weeks that she was in employment prior to her commencing maternity leave averaged a gross wage of £108.42 per week.

THE LAW

21. The Sex Discrimination (Northern Ireland) Order 1976 (hereinafter the 1976 Order) provides as follows:-

5A—1. In any circumstances relevant for the purposes of a provision to which this paragraph applies a person discriminates against a woman if -

(a) at a time in a protected period and on the ground of the women’s pregnancy the person treats her less favourably than he would treat her had she not become pregnant; or

(b) on the ground that the woman is exercising or seeking to exercise, or has exercised or sought to exercise, a statutory right to maternity leave, the person treats her less favourably than he would treat her if she were neither exercising nor seeking to exercise and had neither exercised nor sought to exercise such a right.

(2) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if, on the ground that Article 104(1) of the Employment Rights (Northern Ireland) Order 1996 (Compulsory Maternity Leave) has to be complied with in respect of the woman, he treats her less favourably than he would treat her if that provision did not have to complied with in respect of her.

(3) For the purposes of paragraph (1) -

(a) in relation to a woman a protected period begins each time she becomes pregnant, and the protected period associated with any particular pregnancy of hers ends in accordance with the following rules –

(i) if she is entitled to ordinary but not additional maternity leave in connection with the pregnancy, the protected period ends at the end of her period of ordinary maternity leave connected with the pregnancy or, if earlier, when she returns to work after the end of her pregnancy;

22. In order to establish whether an act of discrimination has been committed against an employee, Article 63A of the 1976 Order provides –

“63A(2) Where on the hearing of the 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 the 1976 Article]……

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.”

23. The tribunal had regard to the case of Igen v Wong (2005) IRLR 258 regarding the burden of proof, more recently determined in Madarassy v Nomura International PLC (2007) IRLR 246 and Laing v Manchester City Council [2006] IRLR 748. It seems clear the tribunal must look not only at the allegations made by the claimant and the evidence produced by her in support of those allegations but also at any evidence produced by the respondent which tends to support the claimant’s case. The tribunal should look at all the evidence in the case to first decide whether the claimant has proved a prima facie factual situation which could suggest discrimination. The burden of proof then moves to the respondent to show to the tribunal that he did not so discriminate against the claimant.

24. So far as the claim for unfair dismissal is concerned, the relevant legislative provisions are Article 126 and 127 of the Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as the 1996 Order). Article 126 states “an employee has the right not to be unfairly dismissed by his employer.” Under Article 127 of the 1996 Order Article 127 (1)(c) provides -

(1) For the purposes of this part an employee is dismissed by his employer if:

(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.

25. There has been much case law in the area of what is termed “constructive dismissal” originating from Western Excavating (ECC) Ltd v Sharp (1978) 1 QB 761. That case established that for an employee to establish constructive dismissal it is necessary to prove.

(a) that there was a breach of his contract of employment

(b) that the breach went to the core of the contract

(d) in all the circumstances the employer acted unreasonably.

26. Equally case law has recognised it is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.. - see Malik v BCCI (1998) AC 20. This principle is often referred to as the implied term of trust and confidence. A breach of the implied term of trust and confidence can be a single act of the employer or a course of conduct over a period of time - see Lewis v Motorworld Garages Ltd (1985) IRLR 465.

27. Where a tribunal finds a complaint of sex discrimination well founded and it considers it just and equitable it shall require the respondent to pay the claimant such compensation as a county court would order to be paid had the claim been brought in the county court - see Article 65 Sex Discrimination (Northern Ireland) Order 1976.

28. Compensation for sex discrimination may include damages for injury to feelings - see Article 66 (4) Sex Discrimination (Northern Ireland) Order 1976.

29. Where the tribunal finds the complaint of unfair dismissal well founded it shall require the respondent to pay the claimant compensation – see Article 146 of The Employment Rights (Northern Ireland) Order 1996.

30. An order for compensation of unfair dismissal shall comprise a basic award and a compensatory award - see Article 152 The Employment Rights (Northern Ireland) Order 1996.

31. Arising from an unfair dismissal the amount of the compensatory award shall be such as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the employee in consequence of the dismissal - see Article 157(1) The Employment Rights (Northern Ireland) Order 1996.

32. In assessing compensation where the employee has been unfairly dismissed and has suffered unlawful discrimination the tribunal has the choice of making an unfair dismissal compensatory award or a discrimination compensatory award. In general the claimant is likely to be better off if the award is made wholly on the basis of the discrimination, and this consideration may weigh with a tribunal faced with a choice - see Harvey on Industrial Relations and Employment Law L516.

33. Compensation for injury to feelings falls into three broad bands; the top band ranges between £15000 and £25000 and is for the most serious cases such as where there has been a lengthy campaign of discriminatory harassment; the middle band between £5000 and £15000 for serious cases that do not merit an award in the highest bands; and the lower band between £500 and £5000 for less serious cases such as where the act of discrimination is an isolated or a one-off occurrence - see Vento v Chief Constable of West Yorkshire Police (No.2) [2003] IRLR 102 CA.

34. The Tribunal took cognisance of various Employment Appeal Tribunal decisions such as Miles v Gilbank [2006] ICR 12 EAT and Northern Ireland Industrial Tribunal Decisions such as Pauline Girvan v Carrickfergus Borough Council (Support Services) case ref 1696-07 and Louise Camac v Craig Bennett trading as Bennetts Mace and Bennetts Northern Ireland Ltd, Case Ref 1139/08.

35. In ascertaining the loss suffered by an employee the tribunal shall apply the same duty to mitigate the loss as applies to damages recoverable under the common law of Northern Ireland.

36. Under Regulation 3(1) of the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 no. 581 a tribunal may include simple interest on an award made and shall consider whether to do so without the need for any application from the parties.

37. Any interest awarded under the discrimination legislation should be awarded, for injury to feelings from the date on which the discrimination began. In relation to other sums of damages or compensation interest shall be awarded from the mid point between the date on which the discrimination began and the calculation date – see Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 No. 581.

APPLICATION OF LAW TO THE FACTS

38. The claimant was an employee who after a short time of commencing her employment made her employer aware that she was already in a well-established pregnancy. It was the respondent’s first occasion dealing with an employee under the relevant maternity regulations and the claimant’s first pregnancy while employed. The respondent was not receptive to the claimant’s request that she would commence her maternity leave early nor did the respondent provide the claimant with any documentation that confirmed both his or her obligations and responsibilities during the protected period.

39. While the claimant was on maternity leave the respondent took no steps to pursue the claimant for outstanding documentation that would have enabled a written contract of employment to be issued to her. The respondent provided no evidence to show that the claimant was informed at any time that her nominated referee had failed to provide a reference.

40. The tribunal is satisfied, on the balance of probabilities, that at various times imprudent comments were made by the respondent to other staff or in their hearing querying the intentions of the claimant to return to her employment. The tribunal could only assume that no other letter issued from the respondent or from HR4UK.com as nothing in writing was produced to the tribunal other than the single letter dated 25 October 2007.

41. The tribunal were satisfied that the claimant in the telephone conversation on 1 September 2008 was left in a state where she neither knew what hours would be offered to her or indeed if any hours would be offered to her by the respondent upon her return to her employment. The tribunal were satisfied, having observed the claimant and respondent giving evidence, that the respondent’s tenure tone and comments may well have added substance to the claimant’s feelings that she was not valued as an employee. The tribunal concluded that as the respondent had other staff in place he had chosen not to actively pursue the claimant to provide the documentation required to permit written terms and conditions of employment to be issued. The tribunal concluded had the claimant been in work and not pregnant, the various changes in legislation in February 2008 would have necessitated the respondent more actively resolving the issue of the outstanding documentation with the claimant. The fact the claimant was on maternity leave meant the respondent put the issue of the outstanding documentation on the long finger - until the claimant contacted him with a request to return to work five weeks early from her maternity leave.

42. The tribunal has no doubt in concluding that the substance of the conversation and the tenure and tone used by the respondent towards the claimant together with his failure to respond to the text forwarded by the claimant on the evening of 1 September 2008 were actions that were a significant breach of the contract of employment existing between the claimant and the respondent. Accordingly the tribunal concluded that the claimant was entitled to treat herself as dismissed by the respondent as a result of his actions on 1 September 2008.

43. The respondent’s treatment of the claimant on 1 September 2008 and his negative comments about her intentions regarding a return to work; his failure to regularise her position regarding a written statement of terms and conditions of employment raised a prima facie situation that such treatment occurred because the claimant was pregnant. The respondent failed to provide any explanation for his failure to pursue the claimant regarding this essential documentation other than to mention it in his letter of 4 September 2008 accepting her resignation. The respondent’s denial that the comments alleged to have been made regarding the claimant’s return from maternity leave to other members of staff were not found to be credible by the tribunal. In all the circumstances the tribunal concluded that the respondent’s treatment of the claimant amounted to less favourable treatment and was on the grounds of her pregnancy or because she was seeking to exercise or exercising her right to maternity leave.

44. The less favourable treatment of the claimant which led to her tendering her resignation from her employment constituted an act of sex discrimination by the respondent.

45. The tribunal however is not satisfied that the claimant in the circumstances of this case sought to mitigate her loss. The claimant was in the unusual situation where her statutory maternity pay exceeded the average weekly pay she earned during the time she was in employment before commencing her maternity leave. Further, the claimant, through tax credits accrued as a result of her husband’s earnings, was in fact financially better off and did not suffer any financial loss as a result of the actions of the respondent.

CONCLUSIONS

46. The claimant had one complete year of service with the respondent at the time of her dismissal. The basic award of one week’s pay amounts to £108.42. In the unusual circumstances of this case, particularly the lack of financial loss suffered immediately post dismissal and the paltry efforts of the claimant to find alternative employment there will be no award for compensatory loss under the Employment Rights (Northern Ireland) Order 1996 but instead the tribunal considered a discrimination compensatory award.

47. In assessing the appropriate level of compensation due to the claimant by way of injury to feelings, the tribunal gave regard to the fact that essentially the discrimination concerned actions of the respondent over a short period and there was no reaction or suffering by the claimant which required any medical treatment or counselling. It is clear to the tribunal the discrimination from which the claimant suffered fell into the lower band of compensation for those less serious cases where the element of discrimination is an isolated or one-off occurrence. The claimant in her own evidence accepted that she resigned because of the actions of the respondent on 1 September 2008 and nothing else. Accordingly, the tribunal has valued a sum for injury to feelings in the amount of £3000.

48. This is an appropriate case where interest of 8% per annum should be added to the award for injury to feelings pursuant to Regulation 3(1) of the Industrial Tribunals (Interests and Awards in Sex Discrimination Cases) Regulations (Northern Ireland) 1996 no.581. Interest should be payable from 3 September 2008 to 10 November 2009.

49. The tribunal awards £3000 for injured feelings. It also awards simple interest of £284.61 making a total award for injury to feelings of £3,284.61.

50. The Tribunal orders that compensation be paid by the respondent to the claimant in the sum of £3,393.03.

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

Chairman:

Date and place of hearing: 17, 18, 30 June 2009, Belfast.

Date decision recorded in register and issued to parties: