Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/995_08IT.html
Cite as: [2009] NIIT 995_08IT, [2009] NIIT 995_8IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 995/08

CLAIMANT: Crystal Mary O’Connor

RESPONDENT: Gerry Hagan and Imelda Hagan trading as O’Hagan’s Bar and Restaurant

DECISION

The unanimous decision of the tribunal is that the claimant’s claims in respect of constructive dismissal, sex discrimination, notice pay and holiday pay are upheld and the tribunal awards her £9,391.00 in compensation.

Constitution of Tribunal:

Chairman: Mr Wimpress

Members: Mr Burnside

Mrs McReynolds

Appearances:

The claimant was represented by Mr Peter Murphy, Solicitor, of Peter Murphy, Solicitors.

The respondent did not appear and was not represented.

The claimant’s claim arises from her employment with the respondent which operated a bar restaurant at the Centrepoint Complex at Portadown Road, Lurgan, County Armagh.

Sources of evidence

The tribunal heard evidence from the claimant and her father, Christopher Anthony O’Connor. The tribunal also received a small bundle of correspondence from the claimant’s solicitor. Mr Murphy also provided the tribunal with a schedule of loss.

The claim and the response

The claimant sought compensation in respect of constructive dismissal, sex discrimination on the grounds of pregnancy, notice pay and holiday pay. The respondent did not file a response and did not attend the hearing either in person or through representation. The tribunal was concerned as to whether the respondent was correctly named in the title of the proceedings and granted an application to amend the name of the respondent to Gerry Hagan and Imelda Hagan trading as O’Hagan’s Bar and Restaurant. The tribunal was satisfied that this minor amendment did not prejudice the respondent and was further satisfied that the respondent had received a copy of the claim and had been duly notified of the date of hearing. In these circumstances the tribunal determined that it was appropriate to proceed in the absence of the respondent.

The issues

4. (a) Was the claimant constructively dismissed?

(b) If so, was the claimant dismissed for a reason connected with her pregnancy?

Did the claimant suffer discrimination on the ground of her sex?

What compensation is the claimant entitled to if she succeeds on any of the above grounds?

The facts

5. The claimant was employed as a bar person/waitress at the Centrepoint Complex Bar for approximately two years. The respondent took over the premises from the previous proprietor, Mr Alan Humphries, in October 2007. When the claimant was first engaged by Mr Humphries it was on the basis of a sixteen hour week with the possibility of working up to twenty hours per week during busy periods. The claimant signed a contract to this effect but was not given a copy of it. The claimant received pay-slips and tax forms from Mr Humphries. In contrast the respondent never provided the claimant with wages slips during the course of her employment or a P60 at the end of the tax year.

The claimant always worked on Saturdays and Sundays and on either Wednesday or Friday. This continued when the respondent became the new proprietor. In December 2007 the claimant made it known to the respondent that she was pregnant and thereafter the respondent reduced her working week to six hours without consulting her. In addition the respondent refused the claimant two weeks paid leave in December 2007 when she was ill on account of her pregnancy and in consequence the claimant had to take two weeks unpaid leave instead. Prior to her pregnancy the respondent had treated the claimant well. When the claimant was fit to return to work after the Christmas period her hours remained reduced. Some weeks she was only allocated six hours on the staff rota, usually the Sunday shift, and other weeks she was given no hours at all yet other members of staff were working above normal hours. The claimant took this up with Mr Hagan who referred her on to the manager, Terry Doyle, who told her that he was acting on the instructions of Mr Hagan. The claimant was also sent text messages on some occasions telling not to come in to work as she was not needed. One Sunday when this occurred, the claimant attended at the respondent’s premises and found someone else performing her waitress duties. The claimant attempted to take this up with Mr Hagan in mid-February but he initially tried to avoid her and when she did see him indicated that he hadn’t expected her to return to work.

7. By the end of March 2008 the claimant’s hours had reduced to zero and she instructed

her solicitor to take these matters up with the respondent. On 29 April 2008, Mr Murphy wrote to Mr Hagan complaining about the claimant’s treatment and seeking to have her normal hours of employment reinstated.

8. The claimant’s baby was born prematurely on 29 May 2008. The claimant’s father called at the respondent’s premises several tines in order to have the statutory maternity pay form signed but Mr Hagan was never available to sign this form. He also took the matter up with the local Job Centre. None of these efforts met with any success.

9. In the absence of any response to his correspondence, Mr Murphy wrote again on 16 June 2008 and raised a number of matters including the respondent’s failure to sign the statutory maternity pay form. Again the respondent failed to reply and Mr Murphy wrote to Mr Hagan on 4 July 2008 and advised that due to the respondent’s failure to deal with the complaints raised in correspondence, the claimant had no alternative but to resign as of that date. Mr Murphy also put Mr Hagan on notice that the claimant intended to lodge proceedings in the industrial tribunal in respect of constructive dismissal and sex discrimination.

10. The claimant received maternity allowance of £48.75 per week. She would have expected to receive £117.15 per week by way of statutory maternity pay if the respondent had completed the necessary paperwork. The claimant has not worked or sought work since the birth of her child who was born prematurely and has suffered some health problems as a consequence. The claimant has seven GCSEs and has an NVQ in business administration.

The law

11. Article 126 of the Employment Rights (Northern Ireland) Order 1996 sets out the right not

to be unfairly dismissed and Article 127 in so far as relevant provides as follows:-

“127(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph (2), only 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.”

Article 131(1) of the 1996 Order further provides:-

“An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—

(a) the reason (or, if more than one, the principal reason) for the dismissal is that she is pregnant or any other reason connected with her pregnancy.”

12. The authors of Harvey at D1[403] described four conditions that an employee must meet if they are to claim constructive dismissal:-

There must be a breach of contract by the employer. This may either be an actual breach or an anticipatory breach.

That breach must be sufficiently important to justify the employee resigning, or else it must be the last of a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting repudiation in law.

He must leave in response to the breach and not for some other, unconnected reason.

He must not delay too long in terminating the contract in response to the employer’s breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.

13. Article 5A of the Sex Discrimination (Northern Ireland) Order 1976 (as amended)

insofar as relevant provides as follows:-

“5A1(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 woman’s pregnancy, the person treats her less favourably than he would treat her had she not become pregnant”

Article 5A(3)(a) provides that the protected period begins when the woman becomes pregnant and ends at the end of the relevant period of maternity leave or if she is not entitled to maternity leave it ends two weeks after the end of her pregnancy.

Submissions

14. Mr Murphy submitted that the claimant was entitled to succeed in her claim of constructive dismissal on the grounds of her treatment once the respondent became aware that she was pregnant and also on the basis of sex discrimination.

Conclusions

15. Constructive Dismissal/Unfair Dismissal

We found the claimant to be a credible witness. We are satisfied that the respondent was in fundamental breach of contract by reducing her hours of work after the claimant had advised Mr Hagan that she was pregnant. The evidence clearly establishes that the claimant left her employment in response to the breach and not for some unconnected reason. The claimant attempted to take up the reduction of her hours with her employer and also properly pursued the matter through her solicitor before resigning. In these circumstances it could not be said that she had waived the breach and agreed to a variation of her contract. We are further satisfied that the respondent’s treatment of the claimant was such as would have rendered her dismissal automatically unfair because it was due to her pregnancy.

16. Sex Discrimination

The respondent’s treatment of the complainant also constitutes sex discrimination on the basis that it amounts to less favourable treatments on sexual grounds. On the basis of our findings, we are satisfied that the claimant has proved facts from which a tribunal could conclude in the absence of an adequate explanation that the respondent had committed an act of unlawful discrimination against the claimant. The burden therefore shifts to the respondent to prove that he did not commit an act of discrimination (Article 63A of the Sex Discrimination (Northern Ireland) Order 1976). As the respondent did not enter a response or otherwise seek to participate in these proceedings the burden is not discharged.

17. The claimant did not make a great play in respect of injury to her feelings. Although she was understandably upset by her treatment she struck us as a fairly robust individual who had coped well with the problems caused by the respondent’s behaviour. We consider that on the basis of the guidance contained in Vento v Chief Constable of West Yorkshire Police (No.2) [2003] IRLR 102 she is entitled to an award at the lower end of the scale as this was a one-off occurrence rather than a course of discriminatory conduct or harassment. We are satisfied that an award of £2,000 is appropriate to reflect the injury to her feelings caused by the respondent’s flagrantly discriminatory behaviour. We are satisfied that in view of the claimant’s experience and qualifications she is unlikely to be without work for a significant period and we are satisfied that her future loss should be assessed at no more than one year.

18. Compensation

The claimant was at no material time in receipt of Jobseeker’s Allowance and/or Income Support. This award is therefore not subject to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.

19. The tribunal therefore assessed compensation payable to the claimant by the respondent as follows:-

Basic Award £ 88.00

Compensatory Award £88.00 x 27 £2,376.00

Future Loss 52 weeks @ £88.00 per week £4,575.00

Notice Pay One week £ 88.00

Holiday Pay (October 2007 to July 2008) three weeks £ 264.00

Sex Discrimination - Injury to feelings £2,000.00

Total Award £9,391.00

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

Chairman:

Date and place of hearing: 8 January 2009, Belfast.

Date decision recorded in register and issued to parties:

00995-08 IT