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Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Winnell v Lydian Care [2010] NIIT 05744_09IT (08 February 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/05744_09IT.html
Cite as: [2010] NIIT 05744_09IT, [2010] NIIT 5744_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 05744/09

CLAIMANT: Heather Winnell

RESPONDENT: Lydian Care

DECISION

The unanimous decision of the tribunal is that the claimant was not unlawfully discriminated against on the ground of pregnancy, and her claim is therefore dismissed.

Constitution of Tribunal:

Chairman: Mr S A Crothers

Members: Mrs S Doran

Mr R Gunn

Appearances:

The claimant was represented by Mr McHugh, Barrister-at-Law, instructed by McGrady Scullion, Solicitors.

The respondent was represented by Miss R Best, Barrister-at-Law, instructed by Rosemary Connolly, Solicitors.

THE CLAIM

1. The claimant claimed that she had been unlawfully discriminated against on the ground of pregnancy. The respondent denied all such allegations.

THE ISSUES

2. At a Case Management Discussion on 27 November 2009 the legal and main factual issues were agreed as set out therein. The legal issues were confirmed by both counsel at the outset of the hearing as follows:-

(i) Was the claimant discriminated against due to her pregnancy contrary to the Sex Discrimination (Northern Ireland) Order 1976 (as amended) by the reduction in her hours?

(ii) If so, did the discrimination cause loss, personal injury and damage to the claimant?

SOURCES OF EVIDENCE

3. The tribunal heard evidence from the claimant and from Pierre Burns a director in the respondent company. The tribunal was also presented with an agreed bundle of documentation and received a separate bundle of agreed medical evidence. The tribunal took into account only documentation referred to in the course of evidence.

FINDINGS OF FACT

4. 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 respondent company (“the Company”) was formed in June 2007. Pierre Burns was initially an employee until in or about August 2008 when he became a director. The company is both a recruitment agency and has dual registration as a nursing and domiciliary care provider. It has a contract with a Health Trust for the provision of domiciliary care services to clients in the community. These services are purchased by the Health Trust on a “spot” or single purchase basis. In addition to his role as director, Pierre Burns is also the registered nurse and responsible person for registration purposes. It was agreed by both parties that the claimant was a worker for the purposes of the relevant provisions of the Sex Discrimination (Northern Ireland) Order 1976 (as amended), (“the Order”).

(ii) The claimant commenced employment with the respondent on 16 October 2007 as a care worker. The contract, signed by the claimant on 5 October 2007 states, inter alia, as follows:-

“2. The Contract

a) These Terms & Conditions constitute the contract between the Care Agency and the Care Worker and they govern Assignments undertaken by the Care Worker with the Client. In the event of the Care Worker declining to accept any offer of work or not attending work for any reason, no contract shall exist between the Care Agency and the Care Worker.

b) For the avoidance of doubt these terms & conditions shall not give rise to a contract of employment between the Care Agency and the Care Worker. The Care Agency acts at all times as an agent for the Care Worker and assumes no responsibility as an employer.

No variation or alteration to these terms & conditions shall be valid unless approved by the Care Agency in writing.

3. The Care Agency will endeavour to obtain suitable Assignments for the Care Worker to work with Clients.

4. The Care Worker acknowledges that it is the nature of temporary work that there may be periods when no suitable work is available and agrees that suitability shall be determined solely by the Care Agency and that the Care Agency shall incur no liability towards the Care Worker should it fail to offer opportunities to work in the category specified in (3) above or in any other category.

5. The Care Agency shall pay the Care Worker remuneration calculated at a minimum hourly rate for each hour worked during an assignment and will be paid weekly in arrears subject to deductions for the purpose of National Insurance Contributions, PAYE and any other deductions which the Care [Agency] may be bound by law to make.”

It was acknowledged by the claimant that there was no guarantee of work and therefore no guarantee of fixed hours or fixed remuneration. The packages of care involved mainly elderly clients and children with special needs or disabilities. Work was allocated taking into account factors such as skill level, geographical location and, primarily, the worker’s availability.

(iii) From March 2008, the claimant had made Pierre Burns aware of the fact that she was planning to go to Australia in December 2008 to get married. Pierre Burns was also aware that the intended absence from work would last from 5 – 6 weeks. The claimant had already spent a period of approximately 3½ weeks in Australia in June 2008.

(iv) In or about August/September 2008, and coinciding with Pierre Burns’ directorship of the company, Carol Savage was recruited by the company as a manager. The tribunal accepts that Pierre Burns was anxious to recruit her and that she brought a number of workers with her who were engaged on terms similar to the claimant. The claimant left for Australia some time between 12 and 15 December 2008 and arrived back in Northern Ireland on Thursday 15 January 2009. At that stage she was about 12 weeks pregnant. She had previously been withdrawn from 2 clients some time prior to going to Australia. Such events were not an indicator of lack of competence. An assessment dated 6/11/08 showed the claimant to be very competent in her role.

(v) The tribunal was shown a detailed analysis of the claimant’s working pattern from week commencing 29 September 2008 up until 9 March 2009 when she went off sick, and for a short period thereafter. A summary of the position, (duly adapted) which was addressed in detail before the tribunal is set out as follows (“HW” is the claimant):-

“WEEKS	HW HRS	AVERAGE HRS	HW WAGE	AVERAGE WAGE	FEMALE	MALE
27	59	29	370.93	215.96	23
28	33	32.93	241.12	200.44	26
29	25	24.38	187.18	197.78	26
30	75.5	28.77	447.37	227.6	28
31	70.25	25.88	408.87	196.29	29
32	55.25	28.74	297.75	225.16	28
33	65	25.56	387.75	189.28	33
34	54.25	26.2	344.99	189.54	34
35	21.75	23.38	134.25	180.47	34
36	7.5	24.76	410	179.24	38
37	27.5	26.4	215	191.36	35	1
38	0	25.31	75	191.65	34	1
39	0	20.7	74.69	177.22	30	1
40	0	25.58	74.6	208.19	30	1
41	0	0	26.18	198.44	32	1
42	0	0	27.1	213.9	29	1
43	25.25	24.65	198.75	182.3	37	1
44	56.5	23.9	351.43	173.38	41	1
45	28.5	23.86	162.93	187.65	43	1
46	13.25	21.5	97.62	159.03	42	1
47	14.25	21.9	107.62	162.85	50	1
48	22.5	23.01	167.25	169.46	51	1
49	14.5	22.4	114.25	174.94	51	1
50	1.5	21.1	73.9	160.46	52	1
51	0	21.43	0	179.45	53	1
52	0	24.73	0	185.35	51	1

HW HRS

AVERAGE

HW WGE

AVERAGE

26 WEEKS

25.7

22.9

192.17

189.13

HW HRS

AVERAGE

HW WGE

AVERAGE

19 WEEKS

35.3

22.9

248.36

187.53

HW’s averages based on 19 weeks when she did work.

Week 27 commenced on 29/9/08. Weeks 38 – 42 cover the period of the claimant’s absence in Australia. Week 43 commenced on 19 January 2009. Week 45 commenced on 2 February 2009 and Week 46 on 9 February 2009. Week 50 is the week in which the claimant went off sick (on 9 March 2009). She has not been engaged by the company since, and asserted before the tribunal that she could not work for Pierre Burns again.

(vi) The claimant chose to work predominantly within a 6 mile radius of her home in Clough, Co Down. The Trust did not pay for travelling time or for travelling expenses and therefore the claimant stated in her evidence that she found it uneconomical to work outside the 6 mile radius. However, the claimant had done some work in Castlewellan (a distance of 6 – 7 miles from her home), and in Downpatrick (a distance of 4 miles). Newcastle is a distance of 7 – 10 miles from Clough but the claimant was unwilling to work in that location as she claimed it was uneconomical to do so. The tribunal accepts however that after the claimant returned from Australia she was offered other work by Mr Burns but chose not to accept some of the offers, which included work in Newcastle.

(vii) The tribunal finds it useful to set out, in general terms, the chronology of events subsequent to the claimant’s return to Northern Ireland on 15 January 2009 as follows:-

Sunday 18 January 2009. The claimant had a telephone conversation with Pierre Burns.

Wednesday 21 January 2009. The claimant and Pierre Burns had a meeting in a coffee shop adjacent to the company’s office in Newcastle.

Thursday 22 January 2009. The claimant resumed work.

On 4 February 2009 the company received an e-mail from Roisin Keown, Care Manager, Newcastle Community Services stating that a client (“the overnight client”) “is going into Slievedhu Nursing Home today please suspend her package on procare”. Subsequently and before 18/2/09 another Dundrum client and a Seaforde client were withdrawn from the claimant.

On 18 and 19 February 2009 the claimant had discussions with Pierre Burns. At paragraph 7.2 of the claim form, the claimant inserted 18 February 2009 as being the date on which the matter she was complaining about happened.

The claimant raised a grievance in writing on 27 March 2009.

The Company responded to the grievance on 7 April 2009.

The claimant’s maternity leave began on 27 April 2009.

The claimant presented her claim to the tribunal on 6 May 2009.

Maternity pay commenced on 15 May 2009.

(viii) As paragraph (v) above illustrates, the number of workers increased considerably from Week 27 onwards. The tribunal also accepts that the company’s business was expanding during this period and that a certain amount of restructuring was taking place. It also accepts that, necessarily, there were more demands on Pierre Burns’ time as the business expanded.

(ix) By the time the claimant spoke to Pierre Burns by telephone on Sunday 18 January 2009, he had already become aware, through the working environment, of the fact that the claimant was pregnant. He engaged in a general conversation regarding her wedding and time spent in Australia and congratulated her on her pregnancy, having “put it to her” that she was pregnant. It emerged that the claimant had informed a client of her pregnancy prior to leaving for Australia and another member of staff, whom the client had informed of the fact, in turn informed Pierre Burns. The tribunal accepts that Pierre Burns was anxious to meet with the claimant to discuss relevant events during her absence in Australia together with any material matters involving clients whom she had been visiting on a regular basis prior to going to Australia.

(x) The tribunal is satisfied that there was a discussion regarding a risk assessment for the claimant but is not satisfied that such an assessment was a precondition for her return to work. Pierre Burns was involved in a meeting with Social Services on Monday 19 January. The claimant had difficulties with her car on Tuesday 20 January and could not have seen clients at any rate.

(xi) The claimant met with Pierre Burns in a coffee shop adjacent to the company’s office in Newcastle, on Wednesday 21 January 2009. During that conversation, a client referred to as “the Dundrum overnight client” was discussed. The tribunal is not satisfied that hours were taken from the claimant immediately at that meeting in respect of this client. It accepts that prior to her visit to Australia, she was averaging 3.2 nights per week with this client. The tribunal was shown a note of this meeting prepared by Pierre Burns which was mistakeningly dated 20 January 2009 and which clearly shows that the clients being seen previously by the claimant were named and discussed. The claimant was again congratulated regarding her pregnancy.

(xii) The tribunal accepts Pierre Burns’ evidence with regard to his knowledge that where a small company’s national insurance contributions do not exceed £45,000, it is possible in such circumstances to make application to the Inland Revenue to have any statutory maternity pay reimbursed together with an additional amount of 4.5%. Pierre Burns had gained such knowledge at the time of his wife’s pregnancy when she was employed by his brother, an Estate Agent. Part of the claimant’s case was that because she was pregnant, Pierre Burns reduced her hours with certain clients, thereby minimising the maternity payments. Pierre Burns had to contact the Revenue to check the position and payments did not begin until 15 May 2009. There was no evidence before the tribunal that the company deliberately delayed these payments. However, the tribunal was not impressed by Pierre Burns’ attempt to mislead it in terms of referring to a section in the company’s replies to a Notice for Additional Information which asserted, in bold print, the following:-

“*From week 45 onwards Heather was given a small salary increase. All weekend calls were to be paid at a rate of £8.50 per hour. Previously Heather was being paid £7.75ph on a Saturday and £8.05ph for Sunday’s.”

During cross examination, and pursuant to further questions from the tribunal, Pierre Burns, who had drawn this paragraph specifically to the tribunal’s attention, acknowledged that no such pay increase had taken place from Week 45. The tribunal was therefore alerted to Pierre Burns’ credibility as a witness. Nonetheless, the tribunal is satisfied on the evidence which includes the documentation signed by next of kin in relation to another client in Dundrum and a client known as “the Seaforde client”, that, taken together with the correspondence from the Trust in relation to the overnight client, the reason for the reduction in the claimant’s hours was due to external factors initiated by the next of kin and the Trust. These factors were not influenced by the company, its servants, or agents.

(xiii) The tribunal accepts that the claimant was upset by the reduction in her hours, and showed her upset during telephone calls with Pierre Burns.

(xiv) The tribunal was also shown a detailed Schedule of Loss which was not agreed by the respondent. It carefully considered the Schedule together with the claimant’s reasons for not becoming re-engaged with the company and her efforts to obtain further employment. The tribunal also carefully considered the agreed medical evidence.

THE LAW

5. (1) Article 5A of the 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 women’s pregnancy, the person treats her less favourably”.

(2) Article 12(2) of the Order provides as follows:-

“(2) It is unlawful for the principal, in relation to work to which this Article applies, to discriminate against a women who is a contract worker - …

(d) by subjecting her to any other detriment”.

(3) The tribunal was mindful that the amendment to Article 5A of the Order does not require a comparator.

BURDEN OF PROOF REGULATIONS

6. Article 63A 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 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 at 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. These paragraphs as set out in full to give the full context of this part of his judgement, even though Article 5A of the 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 discrimination 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”.

(v) The tribunal also considered the authorities referred to in the skeleton arguments by way of submissions annexed to this decision and Harvey on Industrial Relations and Employment Law at J134.

SUBMISSIONS

7. The tribunal carefully considered the skeleton arguments by way of submissions annexed to this decision together with the respective counsels’ oral submissions which, in expanding on the written submissions, also took further into account the factual issues, the medical evidence, and the Schedule of Loss. The tribunal also requested further oral submissions from both counsel on 15/1/2010 in respect of the case of Muschett v HM Prison Service UK EAT/0132/08.

CONCLUSIONS

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

The tribunal is not satisfied that the claimant has proved facts from which the tribunal could conclude in the absence of an adequate explanation from the respondent that the latter has committed an unlawful act of discrimination in treating the claimant less favourably on the ground of her pregnancy. After carefully weighing the evidence and in light of the findings of fact, the tribunal is satisfied that the reason for the reduction in the claimant’s hours (which became evident within a short time following her return to work on 22 January 2009), was due to factors initiated in one instance by the Health Trust, and in the other two instances by the two clients’ next of kin. These factors were not influenced by the Company, its servants or agents. Accordingly, the burden of proof does not shift to the respondent and the claimant’s claim is therefore dismissed.

Chairman:

Date and place of hearing: 4 – 6 January 2010, Belfast.

Date decision recorded in register and issued to parties:

IN THE OFFICE OF INDUSTRIAL TRIBUNALS & THE FAIR EMPLOYMENT TRIBUNAL

Case Ref No: 5744/09 IT

Between:

HEATHER WINNELL

Claimant
-And-

LYDIAN CARE/ PIERRE BURNS

Respondents

Skeleton Argument on behalf of the Respondent

1. The Claimant undertook work for the Respondent since October 2007. The allegation before the tribunal is that the Respondent reduced her hours upon her return from holiday in Australia in January 2009 as she was pregnant and “because it was a new business he would not want to pay maternity pay”.

2. It was opened to the tribunal by the Claimant that this was the sole basis for the reduction in her hours. However the Inland Revenue reimburses the Respondent the SMP paid plus 4.5% in addition to any SMP paid. Therefore it was in the Respondent’s interest to pay the Claimant more SMP as he would therefore receive more remuneration. The Respondent was aware at all material times that the HMRC would reimburse him and at no stage thought he was responsible solely for the SMP.

Burden of Proof & Relevant Test

3. Igen v Wong [2005] IRLR 258 CA- sets out a 2 stage test. The 1st stage requires the claimant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant The 2nd stage requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld.

4. The Court of appeal affirmed this test in the case of Madarassey [2007] EWCA Civ 33.

5. Nagarajan v London Regional Transport [1999] IRLR 572 HL — The crucial question in a case of direct discrimination is why the complainant received the less favourable treatment (per Lord Nicholls at 575). In the present case were the hours reduced on the grounds of pregnancy? Or was it for some other reason?

6. The Respondent submits it is clear that the reason for the reduction in hours was not pregnancy related in any regard. It was due to external factors outside of the control of the Respondent. Firstly in relation to client 1 (Gertie-overnight) the Claimant accepted that the reason these hours were taken from her was that the client went into a home on the recommendation of Social services (email at pg 118). The second (Seaford) and third (Dundrum) clients were removed from the claimant at the request of the clients’ respective families and not because of the pregnancy of the claimant (emails pg 124 & 125).

7. The claimant was offered other hours, some of which she chose to undertake others she didn’t. It was accepted by the Claimant that she was not entitled to any certain amount of hours per week (as set out at pg 107) nor was she entitled to working with particular clients. Indeed the claimant was not the only care worker that worked with the clients referred to.

8. In the case of Chamberlain Solicitors v Emokpae [2004] IRLR 592 EAT. Judge McMullen QC took the view that Guideline 10 in the Barton case should be adjusted to read as follows :-

“To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was not significantly influenced, as defined in Nagarajan v London Regional Transport [1999] IRLR 572 by grounds of sex”

The Respondent submits that it has satisfied this burden in the present case.

9 According to the Court of Appeal in the case of Ladele v London Borough of Islington [2009] EWCA Civ 1357 (the Christian Registrar’s case) per Master of the Rolls “A similar error of law in the ET’s approach, which applies to virtually every allegation of direct discrimination, was identified by the EAT, and was expressed by Elias J in paragraph 59 in these terms: “Even if... there is sufficient evidence from which an inference of discrimination could be made, [the allegation] requires consideration of the explanation given by the employer for the less favourable treatment’, as, if the ET had been “satisfied that the reason is non-discriminatory (even if in other respects the conduct is unreasonable) then no discrimination has occurred.”

10. The CA in the above mentioned case upheld the following reasoning of the EAT “The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employee 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.”

11. The CA affirmed the decision of the EAT in the Ladele case where it was stated as follows, “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] EWCA Civ 32, [2007] IRLR 259 paragraphs 28-39. …

12. Test- is if the woman was treated differently than she would have been treated had she not become pregnant. Art 5A Sex Discrimination (NI) 1976 Order (as amended?) In the present situation evidence that the hours reduced outside of Respondent’s control- but she was offered other hours which she declined- nothing to do with pregnancy as can be seen.

Calculation of the Statutory Maternity Pay

13. SMP- HMRC guidance on SMP- Pg 7 — agency worker —not under contract not entitled. Pg 11 — Claimant sick leave before 15th week before the baby due and didn’t return to work — not entitled to SMP- paid anyway. Amount Calculated — pg 14 sets out how the SMP calculated -6 steps carried out by resp. Claimant alleges reduced hours to avoid SMP — but no benefit of that as respondent recouped it plus 4.5% of what paid on top of that as per HMRC guidelines pg 30.

14. Relevant legislation that provides the basis for the HMRC guidelines, Social Security Act (NI) 2002 — details how to work out the Average Weekly Earnings for the purpose of SMP, Statutory Maternity Pay (Compensation of Employers) Amendment Regulations 2003 (SI 2003/672)(Amending the Statutory Maternity Pay (Calculation of Earnings) & Miscellaneous Amendment Regulations (NI) 1994 (SR 1994/271), setting out the reimbursement by the HMRC to the Respondent plus the additional sum.

Ouantum

Financial

15. The Claimant was not an employee and as set out previously not entitled to any minimum hours. Therefore the Respondent submits that no financial loss is due to the Claimant

16. In the alternative the Claimant has indicated that she will be .on maternity leave until March 2010. Therefore the minimum period of time relevant to these proceedings are between weeks 43-49.

PI/Injury to feelings

17. The Claimant was defined as being “depression-prone” by Dr Loughrey. There were a number of identified stress factors such as post natal depression, running of 3 houses, financial worries, history of depression.

18. The psychiatric report only repeats what the Claimant has reported to Dr Loughrey.

19. Notably the prognosis is good for the Claimant and no anti-depressants or medication necessary.

20. HM Prison Service v Salmon [2001] IRLR 425 EAT — PI/Injury to feelings can be the same and the tribunal should be cautious not to allow for double compensation.

21. Vento v Chief Constable of West Yorkshire Police (No.2) [2003] IRLR 102 CA- Respondent submits any award of injury to feelings lie firmly within the lower band.

22. Assoukou v Select Services Partners Ltd [2006] EWCA Civ 1442. [2006] All ER (D) 122 (Oct) — ITF £500 -The claimant was discriminated against in relation to the allocation of work. The Court of Appeal held that the claimant had suffered anger and frustration as a result and therefore a small award for injury to feelings was appropriate.

Rachel Best BL

Rosemary Connolly Solicitors

For the Respondents

5th January 2010

IN THE OFFICE OF THE INDUSTRIAL TRIBUNAL

Case Ref: 5744/09IT

BETWEEN

HEATHER WINNELL

Claimant:

-and-

LYDIA CARE

Respondent:

SKELETON ARGUMENT IN
RESPECT OF LEGAL SUBMISSIONS

1. The Claimant contends that at all times material to this case she was a contract worker, working under the control of the Respondent.

2. The Claimant asserts that on or about January 2009, having advised the Respondent that she was pregnant and intending to take maternity leave, the Respondent engaged in the following acts:

(i) The respondent significantly reduced the work hours allocated to the Claimant; and

(ii) Where the Respondent reduced or removed allocated hours from the Claimant, which the Claimant had previously enjoyed, the Respondent did not replace or replenish the reduced or removed hours.

3. The claimant asserts that the reasons advanced by the respondent to justify the reduction or removal of the hours are inconsistent, inaccurate and in bad faith.

4. The Claimant accepts, and has always accepted, that from time to time hours or clients which she has previously enjoyed the benefit of could he removed from her for reasons beyond anyone’s control, ie the death of a client, the necessity of a client to enter respite care etc.

5. The Claimant asserts, however, that if any such reason applies or pertains to the reduction in allocation of hours to the Claimant on or after January 2009,
the Respondent has failed to replace or replenish the Claimant with suitable
hours contrary to the entirety of the working relationship between the Claimant and the respondent before January 2009 when hours wore typically replaced within 2 weeks of them being removed.

6 The Plaintiff asserts that in January, February and March 2009 instead of being offered and provided with increased hours, the Respondent systematically withdrew hours which bad previously and historically been enjoyed by the Claimant.

7. The Claimant asserts that the only chance in circumstances prevailing in January. February and Match 2009 which marked difference in the Claimant’s status from what prevailed before January 2009 was the fact that she was, and had advised the Respondent that she was pregnant end seeking to obtain maternity leave.

8 The Claimant assert that pursuant to the Sex Discrimination (NI) Order 1976 as amended, the Claimant is entitled to not be discriminated against on grounds other maternity.

9. The Claimant asserts that article 12 of the 1976 Order makes express provision for contract workers and article 12(2)(d) makes provision that it is unlawful
for a principal to subject a contract worker to a detriment. The Claimant
asserts that the conduct of the Respondent in the index proceedings demonstrably amounted to a detriment to the Claimant .

10. The Claimant asserts that the decision of the Northern Ireland Court of Appeal in Patefield -v- Belfast City Council (2000) IRLR 664 is good authority for the proposition that a contract worker cannot discriminated on grounds of her maternity.

11. The Claimant asserts that there is further authority in the decision of Lana –v- Positive Action Training in Housing (London) Limited (2001) IRLR 501 to affirm the view that article l2 gives rights in respect of maternity discrimination.

12- The Claimant contends that the unlawful discrimination on grounds of maternity is established in two ways:

(a) by not allocating or providing the Claimant with hours which she previously was provided with; or

(b) where a lawful Or good reason emerges to remove a client or reduce the allocation of hours to the Claimant, by not replenishing or
providing the Claimant with new or other clients or hours.

It is submitted that following the decision in BP Chemicals Limited –v- Gillick and Roevin Management Services Limited [1995] ILR 128 there is good authority for the proposition that article 12 of the 1976 Order, replicating section 9 of the equivalent Sex Discrimination Act 1975, is not restricted to prohibiting discrimination against a contract worker who is actually working for the purpose of article 12 Is to outlaw discrimination in the selection by the principle from among workers supplied under an agency arrangement.

13. The Claimant asserts that a clear motivation for reducing hours allocated to the
Claimant by the Respondent or removing clients from the Plaintiff by the
Respondent was the desire by the Respondent to minimise any maternity
benefits or payments she may be entitled to.

GP McHUGH BL

5^TH January 2010

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