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Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Szymanska v Karen G McLaughliin [2010] NIIT 01408_08IT (17 February 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/01408_08IT.html
Cite as: [2010] NIIT 1408_8IT, [2010] NIIT 01408_08IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 01408/08

CLAIMANT: Natalia Szymanska

RESPONDENTS: 1. Karen G McLaughlin

2. G M Ainsworth

T/A G G Cuisine

DECISION

The unanimous decision of the tribunal is that the claimant’s claims of automatic unfair dismissal for a reason relating to her pregnancy, and unlawful discrimination on the grounds of pregnancy and race are dismissed.

Constitution of Tribunal:

Chairman: Mr S A Crothers

Panel Members: Mrs M Gregg

Mr I Lindsay

Appearances:

The claimant was represented by Mr Smyth of Diamond Heron, Solicitors (for postponement application only).

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

THE CLAIM

1. The claimant claimed that she had been the subject of an automatically unfair dismissal for a reason relating to her pregnancy, and that she had been unlawfully discriminated against on the grounds of pregnancy and race. The respondents denied her allegations and also contended that she had not raised the necessary grievance in writing in relation to her discrimination complaints.

BACKGROUND

2. A number of Case Management Discussions were held as follows:-

(1) On 6 March 2009 the claimant appeared in person.

(2) On 7 August 2009 the claimant appeared in person. The following issues were set out in the Record of Proceedings dated 11 August 2009 as follows:-

“(1) The claimant was employed by the respondents. She was dismissed by them. They say she was dismissed because they genuinely believed, on reasonable grounds, that she was guilty of misconduct. She says she was dismissed because she was pregnant and/or because she is not British or Irish.

(2) The claimant has insufficient service to make a complaint of “ordinary" unfair dismissal under the unfair dismissal legislation. But she makes a claim of automatically unfair dismissal: see below. She also makes a claim of discriminatory dismissal, contrary to the Sex Discrimination (Northern Ireland) Order 1976 (‘the 1976 Order’) and/or contrary to the Race Relations (Northern Ireland) Order 1997 (‘the 1997 Order’).

(3) The parties are agreed that the great majority of the staff of the respondents come from Eastern Europe. According to the claimant, she would not have been dismissed, in the relevant circumstances, if she had been from Northern Ireland, from Great Britain or from Ireland.

(4) The true reason for the claimant’s dismissal, and the question of whether or not pregnancy was a significant reason for the dismissal, are factual matters which will be at the heart of these proceedings.

(5) As already noted above, the claimant has an insufficient period of service with the respondents to qualify to make a claim of ‘ordinary’ unfair dismissal, under the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’). However, the requirement to have a period of not less one year’s service does not apply to automatically unfair dismissals such as a dismissal for a reason relating to pregnancy or childbirth. Therefore, the claimant makes a claim of automatically unfair dismissal on the basis that the reason, or principal reason, for her dismissal was of a kind which is prescribed pursuant to Article 131 of the 1996 Order. In that context, the issue will be whether or not the reason,

or principal reason, for her dismissal was of a kind which was prescribed pursuant to Article 131 of the 1996 Order. If so, (as the respondents accept) such a dismissal would be an automatically unfair dismissal under the unfair dismissal legislation.

(6) In these proceedings, the claimant asserts that the relevant alleged discrimination was discrimination which was perpetrated at a conscious level (as distinct from discrimination at a subconscious or unconscious level).

(7) The claimant is currently seeking legal representation. If she is successful in that quest in the near future, her new legal representatives can, if they think fit, and if they act quickly, ask for reconsideration (with a view to modification or amplification) of these agreed issues.”

(3) Hearing dates were agreed for 12 – 16 October 2009. A further Case Management Discussion was scheduled for 11 September 2009 for the purposes of considering any discovery applications and identifying comparators. On 11 September 2009 the claimant was not present and was not represented. At a further Case Management Discussion held on 5 October 2009 the claimant was represented by Mr J McShane, solicitor of McCartan Turkington Breen, Solicitors. At this stage the substantive hearing listed for 12 – 16 October 2009 was postponed and relisted for 18 January – 22 January 2010.

AMENDMENT OF TITLE

3. The title of the respondents was amended to that shown above.

POSTPONEMENT APPLICATION

4. (1) On 18 January 2010 (and after the hearing had commenced) the tribunal received correspondence from McCartan Turkington Breen Solicitors dated 13 January 2010 which states as follows:-

“We refer to the above and in respect of the aforementioned confirm we are no longer instructed with respect to same and should be obliged if you would kindly acknowledge safe receipt of this correspondence”.

(2) On 15 January 2010 the tribunal received faxed correspondence from Diamond Heron Solicitors which states as follows:-

“Dear Sirs

Re: Claimant : Natalia Szymanska

Respondents : Karen G. McLaughlin & G.M. Ainsworth

Case Reference No : 1408 / 08

We write in relation to the above matter. We have today taken preliminary instructions on behalf of Natalia Szymanska. We have been informed that Ms Szymanska is currently out of the Jurisdiction in Poland and will not be able to return in time for the hearing next week. We are informed that she has been visiting relatives in Poland with her young daughter and was due to return to Northern Ireland this week. However, her young daughter has taken ill and as a result she has been unable to return.

We would therefore [respectfully] ask that the hearing of this matter be given a short adjournment to allow the claimant to return to the Jurisdiction and to enable us to take full instructions from her with a view to coming on record. Please note that we are not in a position at this stage to come on record for her in relation to the full hearing.

We look forward to hearing from you as soon as possible.

Yours faithfully”

(3) On 14 January 2010 the tribunal had received correspondence from the respondents’ representative which, although containing some errors, states as follows:-

“Further to our telephone conversation today in respect of the above case.

This matter is listed for 5 days starting Monday 18^th January 2010, as explained I have other matters listed during this week. But during discussions with the Claimant’s representative via the Labour Relations Agency it has been brought to my attention that:-

1. The Claimant’s representative has come off record.

2. The Claimant’s boyfriend is currently seeking new representation to seek an adjournment.

3. The Claimant is not within the jurisdiction of Northern Ireland.

I should quantify that this information was relied from Mr John McShane the Claimant’s solicitor to Helen Smyth Conciliation officer with Labour Relations Agency.

In light of this situation I would therefore request an Urgent CMD later today or first thing tomorrow Friday 15^th January 2010.

I await your reply.

Yours sincerely”

(4) The matter was referred to a Chairman on 14 January 2010, and since no application for a postponement had been received from or on behalf of the claimant, it was decided that the tribunal should deal with any postponement application on the morning of the hearing.

(5) On the first day of hearing, the tribunal sought to establish precisely the position regarding the claimant. Mr Smyth of Diamond Heron had been instructed solely in relation to a postponement application. The tribunal was grateful to Mr Smyth for arranging the attendance of his colleague, Mr McShane, from McCartan Turkington Breen Solicitors to assist the tribunal. Furthermore, the tribunal heard evidence from the claimant’s partner, Mr Slyk. The tribunal was satisfied that the claimant had left the jurisdiction in late November or early December and had gone back to Poland. Having left her child with her grandparents in Poland, she arrived back in the jurisdiction on Thursday evening 7 January 2010 and left again for Poland on Tuesday morning 12 January 2010, apparently to make decisions regarding treatment for the child. In the interim the claimant was scheduled to sign a conciliation agreement drafted by the Labour Relations Agency. It was common ground that the claimant had to be in the jurisdiction in order to personally sign any such agreement. She did not do so before leaving again for Poland on the morning of 12 January 2010. Subsequent to that date, the Irish Congress of Trade Unions representative, Mr Doherty ceased his involvement in her case. McCartan Turkington Breen solicitors officially came off record for the claimant on Wednesday 13 January 2010. Subsequently Mr Slyk arranged for certain papers to be transferred to Diamond Heron solicitors thus leading to the postponement application. No effort was made to furnish any medical evidence to the tribunal regarding the claimant’s child in advance of the hearing. The tribunal therefore directed that medical evidence should be obtained from a medical practitioner in Poland regarding the child by not later than 10.00 am on Wednesday 20 January 2010 and postponed the hearing accordingly. A medical report was made available on Tuesday 19 January 2010 and was duly translated by Miss Schmidt who assisted the tribunal, when required, during the hearing. The medical report reads as follows:-

“The above-mentioned child is being treated in the Laryngology Clinic for acute inflammation of the right middle ear. [She is being] treated with antibiotics and by Pulitzer’s method.

Aeroplane flights [are] not recommended as of today”.

Miss Schmidt clarified before the tribunal that the words “as of today”, should be more properly interpreted “for the time being”.

There was no firm indication from the claimant or her partner, as to when she would be back in the jurisdiction. Furthermore, Mr McShane had referred to a death or a child’s illness as being the reason for the claimant leaving the jurisdiction again on 12 January 2010.

(6) The tribunal furnished both parties’ representatives with a copy of the English Court of Appeal decisions in Teinaz v London Borough of Wandsworth [2002] IRLR 721, and the later case of Andreou v Lord Chancellor’s

Department [2002] IRLR 728. Both representatives made submissions regarding the postponement application.

(7) The tribunal, having carefully considered the evidence, the representations of Mr McShane, the submissions of Mr Smyth and Mr Sheridan, together with the entire background of the Case Management Discussions, the available medical evidence regarding the child, the case law (insofar as relevant), the tribunal’s overriding objective, and Rule 27 of the Industrial Tribunals (Rules of Procedure) 2005, was satisfied that the postponement application should be refused and that the matter should proceed in accordance with Rule 27 which provides as follows:-

“(5) If a party fails to attend or to be represented (for the purposes of conducting the party’s case at the hearing under Rule 26) at the time and place fixed for such hearing, the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date.

(6) If a tribunal wishes to dismiss or dispose of proceedings in the circumstances described in paragraph (5), it shall first consider any information in its possession which has been made available to it by the parties”.

THE ISSUES

5. The issues before the tribunal were as follows:-

(1) Did the claimant raise a grievance in writing in relation to her allegations of unlawful discrimination on the grounds of pregnancy and race?

(2) Was the claimant automatically unfairly dismissed for a reason relating to pregnancy or childbirth?

(3) Was the claimant, in being dismissed, the subject of unlawful discrimination contrary to Article 5A of the Sex Discrimination (Northern Ireland) Order 1976 (as amended) (“the Sex Discrimination Order”), and/or Article 3 of the Race Relations (Northern Ireland) Order 1997, (“the Race Relations Order”)?

SOURCES OF EVIDENCE

6. The tribunal heard evidence from Karen McLaughlin the respondents’ financial director, and from the respondents’ managing director, Gerard Ainsworth. The tribunal was also presented with a bundle of documentation which had already been furnished to the claimant and her representatives on several occasions. The bundle included the following documents:-

DOC	DESCRIPTION	DATED	PAGE(S)
1	IT1 1408/08IT	12/09/08	1 - 13
2	IT1 Amendments	1/10/08	14
3	IT3 1408/08IT	22/10/08	15 - 25
4	CMD, LEGAL & FACTUAL ISSUES	7/08/09	26 - 30
5	INVESTIGATORY MEETING	6/06/08	31
6	FURTHER INVESTIGATION MEETING	10/06/08	32
7	DISCIPLINARY MEETNG LETTER	5/06/08	33 – 35
8	ROTAS		36 – 40
9	MINUTES OF DISCIPLINARY HEARING	13/06/08	41 – 42
10	DISMISSAL LETTER	14/06/08	43
11	APPEAL LETTER	25/07/08	44
12	INVITE TO APPEAL		45A
13	DISCUSSION MEETING	7/08/08	45
14	MINUTES OF APPEAL	8/08/08	46 – 54
15	VARIOUS MEETINGS		55 – 57
16	LETTER FORM REP	18/08/08	58 – 59
17	VARIOUS DOCUMENTS		60 – 63
18	APPEAL OUTCOME	10/10/08	64
19	COMPARATOR LIST		67 - 68
20	LAST WAGE PAID	14/06/08	69
21	DISCIPLINARY/DISMISSAL POLICY		70 - 73
22	HEALTH & SAFETY/SECURITY POLICY		74
23	CONTRACT OF EMPLOYMENT 2008		75 - 76

The tribunal took into account only documentation referred to in the course of evidence.

FINDINGS OF FACT

7. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact on the balance of probabilities:-

(i) The claimant was employed from 10 October 2007 until 14 June 2008. For the vast majority of this time she was employed as a supervisor with the respondents. The respondents accept that at the effective date of her termination of employment she was some five months pregnant. She had informed the respondents of this fact some six weeks after she became aware of her pregnancy. The tribunal is also satisfied that, following discussions with the claimant, she was treated sensitively in relation to her pregnancy and her rotas were changed so as to avoid any physical exertion in terms of lifting materials on morning shifts. During the Case Management process, the Chairman had requested that a list of comparators who were dismissed by the respondent should be compiled. This list was included in the bundle of documentation and showed individuals who had been dismissed over a 7 year period. 60% – 70% of the respondents’ employees are foreign nationals and the list of comparators reveals that 11 of the 17 individuals named were from Northern Ireland. One of these individuals from Northern Ireland was pregnant when she was dismissed, apparently for misconduct.

(ii) On 10 June 2008 Gerard Ainsworth wrote to the claimant as follows:-

“Dear Natalia

Further to the meeting on 10^th June 2008, and in line with the Company’s disciplinary procedure, I am suspending you on full pay following the allegations referred to below.

During this period I must remind you that you remain an employee of the Company and it may be necessary for me to contact you during your normal working hours and should this be the case then, you are required to make yourself available.

You are required to attend a disciplinary hearing to be held on Friday, 13^th June at 10.30am in the Lisburn Road Store. The purpose of the hearing is to afford you the opportunity to provide an explanation for the following matters. The matters of concern to me are as follows:

Taking part in activities which cause the company to lose faith in your integrity namely, alleged theft of money, further particulars being, it is alleged that on the dates below you failed to follow procedure, which has resulted in a loss of £110.

● On Wednesday, 28^th May you did not inform any of the Management Team that £50 had been missing from the till.

● On Saturday, 31^st May you invited, whilst unauthorized to do so, another member of staff onto the premises of our Lisburn Road Store to assist with money counting. Even when the on duty staff member was instructed to telephone the Manager when £60 was discovered missing the presence of unauthorized personnel was not reported.

● On Thursday, 5^th June you again, whilst unauthorized to do so, invited this member of staff onto our Lisburn Road Store apparently to assist you to look for a further £50 that was missing. This was done without authority or reasonable excuse for your own use or for the use of another. This money has not been accounted for and we have no explanation as to its whereabouts.

The company alleges that this matter, if proven, represents a gross breach of trust.

You have the right to be accompanied by a fellow employee or trade union official and should you wish to exercise this right then, it is your responsibility to make the arrangements. However, should you wish a work colleague to be your companion I would be grateful if you could let us know in order that arrangements can be made for them to be available to confer with you and represent you at the hearing.

These matters are regarded as potentially gross misconduct, which may result in the summary termination of your employment if you are unable to provide a satisfactory explanation to the matters put to you.

You should be aware that the requirement for you to attend this disciplinary hearing in works time, during which time you will be paid, is deemed by the company to be a perfectly reasonable management instruction in line with your contractual disciplinary procedure. Hence, if you fail to attend without notification, or fail to attend without good reason, you are warned that I may make a decision in your absence based on the evidence available to me which could result in the summary termination of your employment (i.e. without notice). It is therefore very much in your interests to attend the hearing.

In addition, for the reasons outlined above, non attendance on this occasion may in itself be treated as failing to obey a reasonable management instruction and that this failure itself may be added to the matters of concern already under consideration. I am also obliged to remind you that a failure to follow a reasonable management instruction may be deemed to be gross misconduct, the penalty for which could also lead to the summary termination of your employment.

I would also draw your attention to the company’s disciplinary rules and procedures which state that we retain the discretion to take into account your length of service with the company and to vary the procedures accordingly, in respect of formal warnings up to and including termination.

I have also attached a copy of the company’s disciplinary rules and procedures (of which you are aware) and to which I will be making reference.

During the course of your suspension you are instructed not to contact or attempt to contact or influence anyone connected with the investigation in any way or to discuss this matter with any other employee or client of the Company. However, should you wish to contact any employee who you feel could assist you in preparing an explanation for the allegations made against you, then please contact me in order that arrangements can be made for them to be available for interview by the Company.

If you have any queries regarding the contents of this letter please contact me.

Yours sincerely

Mr G M Ainsworth

Managing Director”

(iii) The tribunal was shown minutes of the disciplinary hearing dated 13 June 2008 and considered Gerard Ainsworth’s evidence in respect of same. On 14 June 2008 Gerard Ainsworth wrote to the claimant as follows:-

“Dear Natalia

Further to the disciplinary hearing held on Friday, 13 June 2008 I am writing to inform you of my decision.

At this meeting you were offered the opportunity of having a work colleague / Trade Union Official present as a witness, which you declined.

The matters of concern to me were

● On Wednesday, 28^th May you did not inform any of the Management Team that £50 had been missing from the till.

● On Saturday, 31^st May you invited, whilst unauthorized to do so, another member of staff onto the premises of our Lisburn Road Store to assist with money counting. Even when the on duty staff member was instructed to telephone the Manager when £60 was discovered missing the presence of unauthorized personnel was not reported.

● On Thursday, 5^th June you again, whilst unauthorized to do so, invited this member of staff onto our Lisburn Road Store apparently to assist you to look for a further £50 that was missing. This was done without authority or reasonable excuse for your own use or for the use of another. This money has not been accounted for and we have no explanation as to its whereabouts.

At the hearing the reasons you gave for your behaviour was that, although you were aware that no unauthorized personnel should have been on the premises and counting money. Andrzej regularly called in after closing hours to see you.

Having listened to your explanation I considered it to be unsatisfactory because, as notified to all employees and posted on notice boards in store, the following Health & Safety/Security regulation was blatantly disregarded:

“The only personnel allowed to be on the premises are those members of staff that are on duty and closed in to do the opening and closing duties. The door must be kept locked during this period and only opened to facilitate morning deliveries etc. No unauthorized members of staff, friends or family members are to be on the premises.”

As a consequence therefore, I have decided that your employment should be terminated. This will take effect immediately and you will be paid one week’s pay in lieu of notice plus any annual leave to which you are entitled. Your P45 and monies due will be forwarded to you.

You have the right to appeal against my decision and should you wish to do so you should write to Karen McLaughlin, Financial Director within 5 days … I would be grateful if you could let us know in order that arrangements can be made for them to be available to confer with you and represent you at the hearing.

Yours sincerely

G M Ainsworth

Managing Director”

(iv) On 25 July 2008 the claimant wrote to Karen McLaughlin as follows:-

“Dear Karen

I wish to appeal the decision taken by Gerry Ainsworth, Managing Director, to dismiss me which I was notified of by letter dated 14^th June 2008.

This letter informed me that I had the right to appeal against this decision within 5 days. I was not able to submit an appeal within this timescale due to ill health which can be verified by medical certificate if required. This is the earliest date that I have been fit enough to respond.

I wish to appeal the decision to dismiss me on the following grounds:-

1. That the level of disciplinary action was overly excessive.

2. Senior management were aware that my boyfriend Andrzej, who was also an employee of G. G. Cuisine, would call into the shop to escort me home as my shift ended at 10pm and he was concerned for my safety especially given my condition. At no time did management inform Andrzej or me that he should not do this.

3. I believe that the real reason for my dismissal was due to the fact that I had recently informed G. G. Cuisine that I was pregnant.

Also, I was informed by letter from Gerry Ainsworth, dated 10^th June, that I was suspended on full pay. I did not receive any payment during the period of my suspension.

The letter from Gerry Ainsworth dated 14^th June stated that “you will be paid one week’s pay in lieu of notice plus any annual leave to which you are entitled. Your P45 and monies due will be forwarded to you.” I have not received any such payment or my P45.

Natalia Szymanska”

(v) Ultimately, and pursuant to further investigation as reflected in minutes of discussions held on Thursday 7 August 2008 (included in the bundle forwarded to the claimant and/or claimant’s representatives) an appeal hearing was arranged for 8 August 2008. Again the tribunal considered minutes of the appeal hearing and Miss McLaughlin’s evidence in relation to same. The tribunal considered subsequent documentation relating to discussions held with Alastair Block, the claimant’s immediate line manager, and the area manager, Melinda Danyi, on 11 and 12 August 2008 respectively together with further correspondence from the claimant’s representative, Kevin Doherty, of ICTU dated 18 August 2008 and the appeal outcome letter dated 10 October 2008 which reads as follows:-

“Dear Miss Szymanska

You appealed against the decision of the disciplinary hearing held on 13 June 2008, where the decision was taken to dismiss you. The decision was taken following a full and thorough hearing, held in accordance with the company’s disciplinary procedure.

Your appeal hearing was held on 8 August 2008, in the presence of Ms Karen McLaughlin, Financial Director and Witnessed by Mr Tadas Vidziunas, Store Manager, on behalf of the company and you were accompanied by a Mr Kevin Dougherty, Irish Congress of Trade Unions and acting as your

interpreter was Ms Kasia Garbal, Irish Congress of Trade Unions.

I am now writing to confirm the decision taken by Mr Gerald Ainsworth, on behalf of the company, that the decision to dismiss you be upheld for the following reasons:

1. I do not believe that the disciplinary action was overly excessive. We run a cash business that employs upwards of 30 staff. In an effort to ensure job security for all our staff we have in place basic rules that follow the requirements for Security and Health and Safety. These rules were obviously not followed in your case.

2. Senior Management were not aware that your boyfriend Andrzej would be in the shop with you during working hours and we have written statements to confirm this. This, as you were well aware, was strictly against company rules.

3. GG Cuisine is an Equal Opportunities Employer and under no circumstances would the Company ever consider dismissing an employee on the grounds that she was pregnant. I can also confirm that in your particular case that all procedures were correctly followed.

You have now exercised your right of appeal, under the company’s disciplinary procedure and this decision is final.

Yours sincerely

Karen McLaughlin

Financial Director”

THE LAW

8. (1) Article 5A of the Sex Discrimination Order As Amended by the Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2008 provides as follows:-

“(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.

(2) Article 3 of the Race Relations Order provides as follows:-

“3.―(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Order if—

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons.”

(3) Article 131 of the Employment Rights (Northern Ireland) Order 1996 provides that it is automatically unfair to dismiss an employee for a reason or set of circumstances relating to pregnancy, child birth or maternity.

(4) In relation to the grievance issues, the tribunal considered the Employment Appeal Tribunal decision in Lawrence v HM Prison Service [2007] IRLR 468.

BURDEN OF PROOF REGULATIONS

9. Article 63 A of the Order states:-

“(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 or harassment against the complainant which is unlawful by virtue of Part III or

(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination or harassment against the complainant, the Tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, he is not to be treated as having committed that act”.

(i) In Igen Ltd (formerly Leeds Carers Guidance) and Others v Wong, Chamberlains Solicitors and Another v Emokpae; and Brunel University v Webster [2006] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race and disability discrimination. This guidance is now set out in the Annex to the judgment in the Igen case. The guidance is not reproduced but has been taken fully into account.

(ii) The tribunal also considered the following authorities, McDonagh and Others v Hamilton Thom Trading As The Royal Hotel, Dungannon [2007] NICA, Madarassy v Nomura International Plc [2007] IRLR 246 (“Madarassy”), Laing v Manchester City Council [2006] IRLR 748 and Mohmed v West Coast Trains Ltd [2006] UK EAT 0682053008. It is clear from these authorities that in deciding whether a claimant has proved facts from which the tribunal could conclude in the absence of an adequate explanation that discrimination had occurred, the tribunal must consider evidence adduced by both the claimant and the respondent, putting to the

one side the employer’s explanation for the treatment. As Lord Justice Mummery stated in Madarassy at paragraphs 56 and 57:-

“The Court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal “could conclude” that on the balance of probabilities the respondent had committed an unlawful act of discrimination.

“Could conclude” in s.63A(2) must mean that “a reasonable tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory “absence of an adequate explanation” at this stage…, the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by s.5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.”

(iii) The Tribunal received valuable assistance from Mr Justice Elias’ judgement in the case of London Borough of Islington v Ladele & Liberty (EAT) [2009] IRLR 154, at paragraphs 40 and 41. (Article 5A of the Sex Discrimination order no longer requires comparators in a case involving pregnancy):-

“Whilst the basic principles are not difficult to state, there has been extensive case law seeking to assist tribunals in determining whether direct discrimination has occurred. The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities:

(1) In every case the tribunal has to determine the reason why the claimant was treated as he was. As Lord Nicholls put it in Nagarajan v London Regional Transport [1999] IRLR 572, 575 – ‘this is the crucial question’. He also observed that in most cases this will call for some consideration of the mental processes (conscious or sub-conscious) of the alleged discriminator.

(2) If the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.576) as explained by Peter Gibson LJ in Igen v Wong [2005] IRLR 258, paragraph 37.

(3) As the courts have regularly recognised, direct evidence of discrimination is rare and tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC). These are set out in Igen v Wong. That case sets out guidelines in considerable detail, touching on numerous peripheral issues. Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is. The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature. The first stage places a burden on the claimant to establish a prima facie case of discrimination:-

‘Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer.’

If the claimant proves such facts then the second stage is engaged. At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground. If he fails to establish that, the tribunal must find that there is discrimination. (The English law in existence prior to the Burden of Proof Directive reflected these principles save that it laid down that where the prima facie case of discrimination was established it was open to a tribunal to infer that there was discrimination if the employer did not provide a satisfactory non-discriminatory explanation, whereas the Directive requires that such an inference must be made in those circumstances: see the judgment of Neill LJ in the Court of Appeal in King v The Great Britain-China Centre [1991] IRLR 513.)

(4) The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably. That is

a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee. So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one. As Lord Browne-Wilkinson pointed out in Zafar v Glasgow City Council [1997] IRLR 229:-

‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.’

Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discriminatory such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl v Law Society [2004] IRLR 799, paragraphs 100, 101 and if the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn. As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself – or at least not simply from that fact – but from the failure to provide a non-discriminatory explanation for it. But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.

(5) It is not necessary in every case for a tribunal to go through the two-stage procedure. In some cases it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test: see the decision of the Court of Appeal in Brown v Croydon LBC [2007] IRLR 259 paragraphs 28-39. The employee is not prejudiced by that approach because in effect the tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.

(6) It is incumbent on a tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these

relevant factors are: see the observations of Sedley LJ in Anya v University of Oxford [2001] IRLR 377 esp paragraph 10.

(7) As we have said, it is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated. The proper approach to the evidence of how comparators may be used was succinctly summarised by Lord Hoffmann in Watt (formerly Carter) v Ashan [2008] IRLR 243, a case of direct race discrimination by the Labour Party. Lord Hoffmann summarised the position as follows (paragraphs 36-37):-

‘36. The discrimination … is defined … as treating someone on racial grounds “less favourably than he treats or would treat other persons”. The meaning of these apparently simple words was considered by the House in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285. Nothing has been said in this appeal to cast any doubt upon the principles there stated by the House, but the case produced five lengthy speeches and it may be useful to summarise:-

(1) The test for discrimination involves a comparison between the treatment of the complainant and another person (the “statutory comparator”) actual or hypothetical, who is not of the same sex or racial group, as the case may be.

(2) The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in either case should be (or be assumed to be), the same as, or not materially different from, those of the complainant …

(3) The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a tribunal may infer how a hypothetical statutory comparator would have been treated: see Lord Scott of Foscote in Shamoon at paragraph 109 and Lord Rodger of Earlsferry at paragraph 143. This is an ordinary question of relevance, which depends upon the degree of the similarity of the circumstances of the person in question (the “evidential comparator”) to those of the complainant and all the other evidence in the case.

37. It is probably uncommon to find a real person who qualifies … as a statutory comparator. Lord Rodger’s example at paragraph 139 of Shamoon of the two employees with similar disciplinary records who are found drinking together in working time has a factual simplicity which may be rare in ordinary life. At any rate, the question of whether the differences between the circumstances of the complainant and those of the putative statutory comparator are “materially different” is often likely to be disputed. In most cases, however, it will be unnecessary for the tribunal to resolve this dispute because it should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator. If the tribunal is able to conclude that the respondent would have treated such a person more favourably on racial grounds, it would be well advised to avoid deciding whether any actual person was a statutory comparator.’

The logic of Lord Hoffmann’s analysis is that if the tribunal is able to conclude that the respondent would not have treated the comparator more favourably, then again it is unnecessary to determine what are the characteristics of the statutory comparator. This chimes with Lord Nicholls’ observations in Shamoon to the effect that the question whether the claimant has received less favourable treatment is often inextricably linked with the question why the claimant was treated as he was. Accordingly:-

‘employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was’ (paragraph 10).

This approach is also consistent with the proposition in point (5) above. The construction of the statutory comparator has to be identified at the first stage of the Igen principles. But it may not be necessary to engage with the first stage at all”.

(iv) The tribunal also received considerable assistance from the judgment of Lord Justice Girvan in the Northern Ireland Court of Appeal decision in Stephen William Nelson v Newry and Mourne District Council [2009] NICA 24. Referring to the Madarassy decision (supra) he states at paragraph 24 of his judgment:-

“This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude in the absence of adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable [2009] NICA 8 Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination”.

Again, at paragraph 28 he states in the context of the facts of that particular case, as follows:-

“The question in the present case however is not one to be determined by reference to the principles of Wednesbury unreasonabless but by reference to the question of whether one could properly infer that the Council was motivated by a sexually discriminatory intention. Even if an employer could rationally reach the decision which it did in this case, it would nevertheless be liable for unlawful sex discrimination if it was truly motivated by a discriminatory intention. However, having regard to the Council’s margin of appreciation of the circumstances the fact that the decision-making could not be found to be irrational or perverse must be very relevant in deciding whether there was evidence from which it could properly be inferred that the decision making in this instance was motivated by an improper sexually discriminatory intent. The differences between the cases of Mr Nelson and Ms O’Donnell were such that the employer Council could rationally and sensibly have concluded that they were not in a comparable position demanding equality of disciplinary measures. That is a strong factor tending to point away from a sexually discriminatory intent. Once one recognises that there were sufficient differences between the two cases that could sensibly lead to a difference of treatment it is not possible to conclude in the absence of other evidence pointing to gender based decision-making that an inference or presumption of sexual discrimination should be drawn because of the disparate treatment of Ms O’Donnell and Mr Nelson”.

SUBMISSIONS

10. The tribunal heard submissions from the respondents’’ representative urging the tribunal to find against the claimant on all issues.

CONCLUSIONS

11. The tribunal, having carefully considered the evidence together with the submissions of the respondents’ representatives and applied the principles of law to the findings of fact, concludes as follows:-

(i) The tribunal is satisfied, pursuant to the case of Lawrence v HM Prison Service (Supra), that the claimant did not have to raise grievances as she had alleged that the dismissal was an act of unlawful discrimination both in relation to pregnancy and race.

(ii) The claimant has not proved facts from which the tribunal could conclude in the absence of an inadequate explanation from the respondents that the latter have committed an unlawful act of discrimination in treating the claimant less favourably on the ground of pregnancy, or on racial grounds where comparators are still required. The tribunal is satisfied that the reason for the claimant’s dismissal was misconduct and had nothing to do with her pregnancy. She cannot therefore succeed in a claim for automatically unfair dismissal for a reason or set of circumstances relating to her pregnancy. Furthermore, and for the same reason relating to her dismissal, the burden of proof does not move to the respondents in her complaints alleging unlawful discrimination on the grounds of pregnancy and race. Her claims are therefore dismissed.

Chairman:

Date and place of hearing: 18 - 22 January 2010, Belfast.

Date decision recorded in register and issued to parties:

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