Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/03668_09IT.html
Cite as: [2010] NIIT 3668_9IT, [2010] NIIT 03668_09IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 3668/09

CLAIMANT: Lynne Evans

RESPONDENTS: Joyce Scott and Victor Scott

trading as Country Crèche

DECISION

The unanimous decision of the tribunal is that the claimant’s claims of sex discrimination, unfair dismissal, breach of contract, unlawful deductions from wages, and in respect of breach of the right to be accompanied at a disciplinary hearing, are dismissed.

Constitution of Tribunal:

Chairman: Mr D Buchanan

Members: Mr I Lindsay

Ms T Madden

Appearances:

The claimant was represented by Mrs J Griffiths, of Magherafelt Advice Service.

The respondents were represented by Mr C Hamill, Barrister-at-Law, instructed by Jones Cassidy Jones, Solicitors.

1.	(i)	By a claim form presented to the industrial tribunals on 3 March 2009, the claimant, Lynne Evans, made claims of sex discrimination, unfair dismissal, breach of contract, unlawful deductions from wages, and breach of the right to be accompanied at a disciplinary hearing. The respondents denied these allegations. Their case is principally that they dismissed the claimant, whom they allege was attempting to take clients away from their business, for gross misconduct.

	(ii)	In order to determine this matter, we heard evidence from the claimant and from each of the respondents, and from Mary Wallace, one of their employees. We also had regard to documentary evidence to which we were referred. Where there was any conflict in the evidence of the claimant, and of the respondents and their witness, we preferred the latter. We did not find the claimant consistent in her evidence and she did not call witnesses (her mother, her husband and someone she described as a friend), whom she could reasonably have been expected to call to support allegations that she made. We set out the background to this matter, and the facts which we have found, in the following paragraphs.

2.	(i)	The claimant was employed as a nursery assistant in the respondents’ crèche. It appears that initially she started in January 1999 as an unpaid trainee on work placement under a government scheme called ‘Young Help’ and was paid directly under that scheme. She became an employee of the respondents in January 2000, and remained with them until the date of her dismissal on 19 December 2008. The respondents acknowledged that the claimant was a good worker, and that they had no reason to complain about her until the events which led to her dismissal. Even at that stage, their evidence was that they would have liked to keep her if she had been frank and honest with them when confronted with allegations of misconduct. We have no reason to doubt their evidence in that respect.

	(ii)	The claimant’s own case is that she had a good relationship with her employers throughout most of the course of her employment. However, this changed when she got married in June 2007. Subsequently, and unfortunately, she suffered two miscarriages, one in April 2008, and then again in November 2008. On the former occasion she was off work for five weeks, on the latter for two weeks. Following her return to work on the second occasion, she remained there for two days, and then went off on sick leave. She did not return to work, and was dismissed on 19 December 2008.

	(iii)	It is the claimant’s case that as a result of her marriage, her pregnancies with their unfortunate miscarriages, or a combination of these events, things became different at work and she got the impression that her employers’ attitude to her had changed, that they no longer wanted to employ her, and that they engaged in a course of conduct designed to get rid off her. This culminated in an attempt on their part to entrap her, in that they set her up to ‘poach’ their clients. According to her, her dismissal was contrived. (It should be noted at this stage the claimant also alleged, for the first time, in the course of her evidence that attitudes towards her had also changed following a period of sick leave because of back trouble in 2007.) Examples of discriminatory and unfair treatment when she returned to work included reducing her hours from 37¹/₂ to 25, singling her out for a return to work interview, and the fact on her second day back, Mrs Scott gave her the telephone number of a gynaecologist, and in effect stood over and insisted that she ring him there and then. (The claimant did ring the number which went through to an answer phone.) The claimant also alleges that when she went into work on a couple of occasions, to give her employers an update on her progress and to leave in sick lines, no one had any time to speak to her and it was clear that she was not wanted on the premises. However, on one of these occasions, Mrs Scott allegedly suggested to her that she should register as a childminder and take on two children from the ‘M’ family whom Mrs Scott allegedly did not want because they were early starts. The crèche opened at 7.00 am and apparently Mr and Mrs ‘M’ started work before that time.

3.	(i)	We do not accept that the Scotts were unsympathetic to the claimant on her return to work. We find the contrary to be the case. Mrs Scott and her daughter had also suffered miscarriages. Mrs Scott had recently undergone surgery and her daughter had given up work in the crèche for health reasons. It would be surprising, in view of their own circumstances, if they had shown a lack of sympathy to the claimant.

	(ii)	Although the claimant only returned to work for two days following her absence because of the second miscarriage, the reason she gave for this during her evidence-in-chief was that her own GP had told her that she had come back to work too soon. It was not because of any treatment she had received from the Scotts.

	(iii)	There is no evidence that the Scotts had ever made things difficult for those taking maternity leave and the claimant accepted that this was so. The employees of the crèche were all female, and Mrs Scott recognised that marriage, pregnancies, pregnancy-related illness and maternity absence were the inevitable consequence for an employer in her position.

	(iv)	As far as the reduction in the claimant’s hours of work are concerned, it is not in dispute that on her return to work on the second occasion these were reduced from 37.5 hours per week to 25 hours per week. This also happened on the previous occasion and the claimant accepts that on that occasion the hours were reduced with her consent. On the second occasion, she alleges that the reduction in hours was made unilaterally by the employer. This is denied by Mrs Scott. We accept her evidence that on the second occasion, too, the claimant agreed to the reduction. This is entirely consistent with what happened on the previous occasion, and is consistent with a desire on the part of the claimant for a phased return to work on health grounds and the employers’ willingness to consider this. At no time before her dismissal did the claimant make any complaints to her employers about this reduction in hours. There is no evidence to support the claimant’s allegation that a return to work record was altered by Mrs Scott subsequent to the interview to show a variation in hours which had not been agreed.

	(v)	As far as the claimant’s conversation with Mrs Scott about a gynaecologist is concerned, it is not disputed that such a conversation took place. We find, however, that the claimant has misrepresented what took place. The claimant had indicated to Mrs Scott that she hoped to get an appointment with a gynaecologist in Ballymena, but said she was not sure if it would take place. Mrs Scott then suggested a gynaecologist who had treated her daughter, and it was the claimant who asked her for his name and number. Mrs Scott rang her daughter, got the number and gave it to the claimant, who did try to ring him. Mrs Scott, however, did not tell her to ring him there and then.

	(vi)	The claimant’s evidence is that she was distressed at these matters, and that when her mother rang Mrs Scott, presumably to remonstrate or complain, the latter refused to speak to her and put the phone down. In these circumstances we find it surprising that the claimant did not call her mother to give evidence which may have supported her case.

	(vii)	As far as the claimant’s complaints about the return to work interviews are concerned, we find nothing turns on these. The return to work interview had been introduced by Mrs Scott’s daughter, who herself had to leave work for health reasons. Admittedly, it appears to us that these procedures were applied in a somewhat haphazard way, but there is no evidence before us from which we can infer that the claimant was singled out in their application for any improper or discriminatory reason.

	(viii)	We also reject the claimant’s allegations that when she called into the crèche, she was deliberately made to feel unwelcome and was, in effect, snubbed. We accept that people did have limited conversation with her, but this was entirely due to the fact that they were in a busy working environment, looking after young children who required constant attention and supervision.

4.	(i)	We now turn to the claimant’s principal complaint, that of unfair dismissal. As was indicated earlier, the allegation is that the respondents entrapped the claimant into attempting to solicit their clients to provide a pretext for her dismissal. We have to say that we find this a most unlikely scenario, which is not supported by the evidence. Firstly, there could never be any guarantee that the claimant would take the bait. According to her, it was suggested that she approach the ‘M’ family, but in fact the ‘M’ family did not figure in events as they subsequently developed. Secondly, it would also have been a very high risk strategy for the employers which could easily have backfired on them. The claimant’s dismissal took place at a time when there were signs that business was decreasing – parents were losing jobs because of the recession, and did not need, and in some cases could not afford, childcare. In these circumstances, it seems to us unlikely that the employers would have set out on a course of conduct, where the claimant might actually have succeeded in taking business away from them.

	(ii)	We are satisfied that approaches made by the claimant to parents of children at the crèche were made of her own volition, without any prompting or encouragement from the respondents. We find that she did this in an attempt to ‘poach’ clients of the respondents, and that the parents who were approached complained about this to the latter. (In evidence the claimant did not deny making these approaches, but, somewhat disingenuously, stated that she did not approach the parents to take away their children but to see if they knew other parents who were interested in her providing childcare for their children.)

	(iii)	In relation to one of the parents , ‘PL’, who provided a written complaint to the respondents, the claimant alleged at the hearing that she had in effect been suborned by the respondents to make this complaint, and that ‘PL’, who she claimed was her friend, had admitted this to her. When asked by the tribunal why a supposed friend should act in this way, she replied that that “was the sort of person she was”. Again, if the claimant’s account of what took place is true, it is surprising that ‘PL’ was not called to give evidence on her behalf. It is also significant in our view that at the subsequent disciplinary proceedings which led to her dismissal, the claimant at no time raised the point that as far as she was concerned she had made the approaches to the parents at the employers’ suggestion or with their acquiescence.

	(iv)	There is evidence before us that the claimant, at work, had discussed setting up her own business. We discount that and place no reliance on that in reaching our decision. We think that talk among employees about setting up on their own must be quite common, and often nothing will come off it. However, more significantly, the claimant in her own evidence-in-chief did state that she had had a discussion with ‘PL’ the year before during which she had talked about becoming registered as a childminder, and asked ‘PL’ if she would be interested in using her services.

5.	(i)	On the basis of the complaints from parents the respondents commenced an investigation into the claimant’s conduct which concluded with a disciplinary hearing at which she was dismissed. On 11 December 2008 the claimant was invited to a meeting with her employers. This was an investigatory meeting, though the letter to her asking her to attend did not indicate that this was the case. However, at the investigatory meeting, which took place the following day, 12 December 2008, she was told of the allegations by the parents and given the opportunity to put her side of the story. She denied the allegations stating that the parents had made the approaches to her. At this meeting she was told that she would be invited back for a further disciplinary meeting after Mr and Mrs Scott had had the opportunity to discuss the matter. In the course of this meeting, on 12 December 2008, the claimant tried to contact her husband on his mobile. She stated, in evidence, that later that evening her husband telephoned Mr Scott to find out what was going on and was told, by the latter, in no uncertain terms, that it was none of his business. Again, the claimant has not called her husband to give evidence on her behalf.

	(ii)	On 16 December 2008 the claimant was informed of a disciplinary hearing on 19 December 2008. She was told that this would allow her the opportunity to answer the allegations against her and allow the respondents to establish what, if any, disciplinary action should be taken against her. She was told that the allegation against her was one of gross misconduct, namely “undertaking or attempting to undertake work in competition with [her] own employer” and that this allegations, if proved, could lead to dismissal. She was informed of the basis of the allegation, namely verbal and written statements from parents of children at the crèche. Finally, she was given notice that she could be accompanied at the hearing by a work colleague or trade union official.

	(iii)	At this juncture it is convenient to consider the contention put forward on behalf of the claimant that the height of the allegation against her was ‘attempting’ to undertake work in competition with her own employer, and that it was only the completed conduct which constituted gross misconduct under the employers’ disciplinary procedures. This seems to us to take an unduly technical approach to the wording of the disciplinary procedure. For example, ‘theft’, but not ‘attempted theft’ is stated to be gross misconduct. However, it would be surprising if the latter, also, were not considered to be gross misconduct. However, what puts the matter beyond doubt is that the disciplinary rules specifying the levels of misconduct and what is comprised in them state:-

“This is not an exhaustive list and management reserves the right to decide how any other misconduct shall be categorised.”

(iv)

At the disciplinary hearing on 19 December 2008 the claimant again stated that she had not approached parents, but rather they had approached her. Mr Scott gave her copies of the letters which she had the opportunity to read. However, she did not admit to any of the conduct alleged against her, and she was therefore told by Mr Scott that her employment had been terminated, and informed of her right to appeal against dismissal.

Her dismissal was confirmed by letter of 20 December 2008.

6. We deal now with some specific complaints which the claimant makes against the respondents’ disciplinary procedures:-

(i) The claimant complains about the attendance of a fellow worker, Mary Wallace, at the investigatory and disciplinary meetings. The claimant herself did not ask to be accompanied in relation to either meeting (she had been specifically told of her right to be accompanied at the disciplinary hearing). In these circumstances, Mr and Mrs Scott decided that Miss Wallace, another employee, should be present. The claimant did not object to Miss Wallace’s presence or either occasion.

The claimant alleges that at both hearings, Mr Scott shouted over her and did not give her the opportunity to put her case. We accept the evidence of Miss Wallace that this did not happen.

(ii) It is accepted that the investigatory and disciplinary hearings were held when the claimant was off work ill. She made no complaint about this at the time.

She had, in fact, called in to work on two other, unrelated, occasions, and as we have noted above complained that no one had time to speak to her.

(iii) It is further accepted by the respondents that during the investigatory and disciplinary meetings, the door to the kitchen, where they were held, was locked by Mr Scott. However, this was done with the claimant’s consent and the reason for this was not to intimidate her, as she now alleges, but because people had begun to come in and out of the kitchen while the meeting was in progress, and to stop these interruptions.

7.	(i)	We are satisfied that the claimant’s dismissal was fair. The employers honestly believed that the claimant was guilty of the misconduct alleged against her, i.e. attempting to take away some of their clients. They had reasonable grounds for such a belief, based on the evidence of parents, having carried out a reasonable investigation into the allegations. We are satisfied that the dismissal was procedurally fair having regard to the size and resources of the business, which was a small organisation. The dismissal procedure complied with the minimum statutory procedures and with the employers’ own procedures. The sanction of dismissal operated harshly on the claimant, given her own unfortunate circumstances. However, we cannot say that it was a sanction that a reasonable employer could not have imposed. Mr and Mrs Scott realised it was a severe sanction. Had the claimant admitted what she had done, but not brazened matters out at the disciplinary hearing, they would have considered keeping her on.

	(ii)	Even if we had found that the claimant had been unfairly dismissed, we would have held that she had substantially contributed to her own dismissal, and would have reduced any compensation accordingly.

	(iii)	We therefore dismiss the complaint of unfair dismissal.

	(iv)	On the facts we have found, there is nothing from which we can draw any inference that the claimant was discriminated against because of marital status or pregnancy and we dismiss those claims also.

	(v)	We also dismiss the claims for unlawful deductions from wages and breach of contract. The variation in the claimant’s hours on her return to work was agreed, not unilateral.

	(vi)	There is no evidence on any breach of Article 12 of the Employment Relations (Northern Ireland) Order 1999. The claimant at no time made any request to be accompanied at the disciplinary hearing.

Chairman:

Date and place of hearing: 25 – 27 January 2010, Belfast

Date decision recorded in register and issued to parties:

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