Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/7237_09IT.html
Cite as: [2010] NIIT 7237_9IT, [2010] NIIT 7237_09IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 7237/09

CLAIMANT: Pamela Thompson

RESPONDENT: DSG Retail Limited

DECISION

The unanimous decision of the tribunal is that the claimant was not discriminated on the grounds of her sex and was not unfairly dismissed.

Constitution of Tribunal:

Chairman: Mr P Cross

Panel Members: Ms G Ferguson

Ms M Galloway

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr Dunlop Barrister-at-Law, instructed by Messrs Carson & McDowell Solicitors.

Findings of Fact

1. The claimant, who was the manager of the respondent’s store trading under the name of Dixon’s in Belfast City Centre, went on maternity leave on 14 October 2007. Prior to that she had been on holiday for a few weeks. The claimant advised the respondent that she would return to work on 27 July 2008. However before the claimant was able to return she was diagnosed with Post Natal Depression and was only able to return to work in June 2009.

2. During the course of her maternity leave and subsequent illness, the respondent did not have much contact with the claimant. Her line manager at the time, Mr Tye telephoned to her on one occasion and visited her at home during her illness. The company policy of the respondent states, that the company and the employee should keep in touch during maternity or sickness absence. The respondent’s reason for this lack of contact with the claimant was that some employees resent too much contact during such periods of absence and accordingly the respondent’s manager was anxious to avoid this happening with the claimant.

3. In the spring of 2009 Mr Tye was succeeded as the claimant’s line manager by Mr Cassidy. Mr Cassidy arranged for the claimant to return to work in a part time way. She started this return at the respondent’s store in Bangor from 4 June 2009. Before this return the claimant met Mr Cassidy at a coffee shop on 28 April 2009. The claimant mentioned that she felt that she had not had as much support from the respondent as she felt she should have had, but apart from this complaint the meeting went well and Mr Cassidy informed the claimant of his management style and how he wanted her to get back to work in a part time way, that would be comfortable to her. The claimant did not want to return to the store in Belfast, where she had been manager before she left on her maternity leave. This suited Mr Cassidy, who felt that the new stand in manager of the store was well established there.

4. At the meeting described above, or shortly afterwards, Mr Cassidy informed the claimant that there was a disciplinary issue to be investigated in relation to the claimant’s period of management of the Belfast store. This surprised the claimant who had not heard of this matter previously. It was decided to hold the disciplinary meeting between the claimant and Mr Cassidy at the store in Lisburn on 15 July 2009. At this meeting the claimant was suspended, pending further investigation into allegations that she breached company processes in regard to certain staff incentive schemes. The charges levelled against the claimant were, that during her management of the Belfast store:-

(1) She gave items of stock to other employees, without prior approval of the regional manager.

(2) She was also charged with false accounting of stock items to disguise the fact that they were in the homes of other employees.

(3) She was charged with giving a false refund to enhance the stores profitability, to gain a bonus for the staff at her store.

(4) She caused a loss to the respondent of £5664.00.

(5) She failed to supply the recipients of the incentives with proper receipts and failed to complete tax incentive documentation.

5. The matter was fully investigated by the respondent and a disciplinary hearing was arranged for the claimant to answer the allegations. This was held in Lisburn on 11 August 2009. An earlier meeting which was proposed for 28 July 2009 had been postponed as the claimant was given insufficient notice of it, only receiving the details the day before. At the meeting on 11 August 2009, Mr Cassidy, having conducted the meeting and listened to the claimant’s explanations, found that the five charges set out above, were proved against the claimant. In these circumstances he summarily dismissed the claimant for gross misconduct. Mr Cassidy told the claimant that she could appeal against his decision. The claimant stated to the tribunal that Mr Cassidy advised her, “that off the record”, she should use the appeal system and that he could give her a reference. The tribunal find as a fact that Mr Cassidy did advise the claimant, who was by then in a very emotional and tearful state, to appeal. The tribunal do not find that Mr Cassidy spoke about a personal reference.

6. The claimant did appeal against Mr Cassidy’s decision to dismiss her, but her appeal was unsuccessful.

7. One of the main justifications for her conduct, given to the tribunal by the claimant in her defence, was that the claimant was treated differently to another manager in the respondent’s Enniskillen store. This was a Mr Mebes Baskalia, who is no longer in the store in Enniskillen, but who, the claimant alleged, was involved in a course of conduct, not dissimilar to the conduct alleged against the claimant. The tribunal heard that bonus was attracted to stores that could demonstrate that their staff had sold extra items to customers of large items. For instance, selling a stand or wall bracket with a Television, or extra items with a computer. In the Enniskillen store the staff had allegedly invoiced extra articles to customers of large items and then taken the extras back into stock, without the customer knowing that he had even “purchased” the extras. In this way bonus was achieved for the store which it was not entitled to. The respondent having seen how this bonus scheme could be misused by the staff in the stores, did not investigate the matter in a disciplinary way, but cancelled the scheme.

8. The tribunal looked at this evidence carefully as it might have demonstrated unfair treatment of different managers; the claimant with her misuse of company stock in giving it to employees and the Enniskillen situation where the manager may have ignored a misuse of the bonus system. The claimant in her own evidence admitted that the two situations were different and that none of the five allegations, referred to in paragraph 4 above, could have been successfully put to Mr Baskalia. This being the case the tribunal find as a fact that the two situations were different. The Enniskillen incident being of much less gravity.

9. The claimant also alleged that the respondents had made detailed arrangements to promote the man who had taken over from her as manager of her store, when she left on maternity leave. Evidence was advanced by the claimant that he was treated in a “fast track” manner, so that he could have completed his in store training and become available as a fully qualified manager, before the claimant came back to her store. The tribunal do not see anything untoward about these matters and find as a fact that the replacement manager was treated in the usual way by the respondent.

10. The claimant also drew other matters to the attention of the tribunal, namely mistakes in correspondence regarding dates and her Christian name. Delay in notifying the claimant of the date of the disciplinary hearing was also raised as an example of unfair treatment of her. The tribunal find as a fact that these matters were due to carelessness on the part of the respondent, or were matters that were subsequently corrected by the respondent before any prejudice was suffered by the claimant.

11. The claimant was aware of the respondent’s disciplinary code and practice, as on one occasion in 2003, she had chaired a disciplinary hearing against another employee of the respondent.

The Law

12. Article 3 of the Sex Discrimination (Northern Ireland) Order 1976, (“the 1976 Order”), states that a person discriminates against a woman if on the grounds of her sex he treats her less favourably than he treats a man. Article 8 states that it is unlawful for an employer to discriminate against a woman, “by dismissing her or subjecting her to any other detriment”.

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

“63A (2) Where on the hearing of the complaint the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent -

(a) has committed an act of discrimination against the complainant which is unlawful [by virtue of the 1976 Order]

(b) ---------------------------------------

the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed, that act”.

14. Thus the tribunal, in deciding whether there has been an act of discrimination on the part of a respondent, must first decide whether the claimant has proved a prima facia factual situation which could suggest discrimination. The burden of proof then moves to the respondent to show to the tribunal that he did not so discriminate against the claimant.

15. The tribunal in considering the alleged act of discrimination by the respondent was guided by the judgment of Lord Johnston in the Scottish Employment Appeal Tribunal in the case of Caledonia Bureau Investment & Property v Caffrey [1998] ICR 603. In that case, which dealt with a dismissal of a woman suffering from Post Natal Depression, Lord Johnston stated:-

“we are prepared to affirm that, in terms of the sex discrimination legislation, when a woman is dismissed by reason of an illness which is related to having given birth, or being pregnant, or both, which illness arises or emerges during the course of the maternity leave period, albeit the dismissal takes place after the expiry of that period, it is still a discriminatory dismissal against a female, upon the basis that at the time of the dismissal she suffered from an illness from which a man could not suffer, and thus is being treated differently from her male counterparts.”

16. Under Article 126 of the Employment Rights (Northern Ireland) Order 1996, (hereinafter called “the 1996 Order”) an employee has a right not to be unfairly dismissed by his employer. Article 130 of the 1996 Order states, that the onus is on the employer to show that the reason (or the principal reason if there are more than one reason), for the dismissal falls within Article 130(2), or is for some other substantial reason. In this case the respondent claims that the reason for the dismissal is the conduct of the claimant. This reason falls within Article 130(2) (b). When the respondent has discharged this requirement, then under Article 130(4) “the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.”

The burden of proof in this regard is neutral and the tribunal has to consider all the evidence of the parties, to ascertain whether the disciplinary enquires and hearings were conducted in a fair manner toward the claimant.

17. The leading case, which assists the tribunal in cases of this nature, is British Home Stores v Burchell 1978 [IRLR] 379, in which the EAT laid down the test of fairness in a case of investigation into the employee’s conduct. This test, which has been followed by courts and tribunals, lays down certain guidelines regarding the employer’s belief at the time of the dismissal. The employer, in a case of this type, must show to the tribunal, that he “entertained a reasonable suspicion, amounting to a belief in the guilt of the employee of that misconduct at that time”. Arnold J states in his judgment in the Burchell case, after the above quoted words:-

“First of all there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.”

18. The Burchell and other decisions make it very clear to tribunals that they must not impose their own decision on the parties, in place of a decision that has been reached by an employer who has observed the guidelines stated above.

19. Once the tribunal has made the decision, that the process of the enquiry and disciplinary and appeal hearings have been conducted fairly, it must decide whether the decision of the employer, to dismiss the employee is within a band of reasonable responses that a reasonable employer might be expected to adopt, if faced with a disciplinary problem such as the one before this tribunal.

20. The tribunal considered a number of cases which throw light on the way that the tribunal should approach the problems posed by dismissals on the ground of the conduct of an employee. The approach that the employer should adopt in the enquiry process that the employer embarks on and the following disciplinary enquiry, is set out in the undermentioned cases.

21. In Kuzel v Roche Products [2008] IRLR 530 the English Court of Appeal dealt with the argument that a dismissal for one reason disguises another reason. In this case the disguised reason would be the claimant’s sex and absence for a sex related illness. The head note to the report in IRLR states:-

“When an employee positively asserts that there was a different and inadmissible reason for his dismissal ………….. he must produce some evidence supporting the positive case. That does not mean, however, that in order to succeed in an unfair dismissal claim the employee has to discharge the burden of proving that the dismissal was for that different reason. It is sufficient for the employee to challenge the evidence produced by the employer to show the reason advanced by him for the dismissal and to produce some evidence of a different reason”.

22. Finally the tribunal was referred to the recent decision of the Northern Ireland Court of Appeal in Rogan v South Eastern Health and Social Care Trust, [2009] NICA 47. That case provides much advice for tribunals hearing cases of this type. In Paragraph 19 the Lord Chief Justice, Sir Declan Morgan, states;

“The issue as to what if any conduct constituted the reason for dismissal was clearly a matter on which the belief of the disciplinary panel was the critical issue and the agreed and correct legal position of the parties was, that having established the belief of the disciplinary panel, the tribunal should not rehear the allegations but should consider whether the employer acted reasonably having regard to the material available to it and the investigation carried out by it.”

Decision of the tribunal

23. The claimant argued that she had been unfairly treated because of her period of absence from work after the birth of her child. She had suffered from Post Natal Depression which was a direct result of the confinement and as a result had been absent from work for over a year. Her case to this tribunal was, that this absence resulted in a desire on the part of the managers of the respondent to dismiss her on a spurious charge, which charge was similar to a situation in the Enniskillen branch, that had not led to any charges being made against the male manager. The claimant however in her own evidence under cross examination admitted that there were very substantial differences between the two situations. The tribunal find that these differences are of such a fundamental nature, as to prevent the tribunal from considering the alleged different treatment as sufficient, to trigger the transfer of the burden of proof under Article 63A of the 1976 Order. The other matters raised by the claimant, in her claim that her dismissal was due to sex discrimination, for instance, the quick promotion of the stand in manager in her store and the clerical errors in the correspondence and arrangements mentioned above, do not demonstrate to the tribunal evidence that would cause it to reverse the burden of proof or, for the tribunal to find any evidence of sex discrimination on the part of the respondent. The tribunal finds that the respondent was not guilty of sex discrimination.

24. So far as the claimant’s claim for unfair dismissal is concerned the tribunal find that the respondent did have a genuine belief in the guilt of the claimant, with regard to the allegations against her. The respondent had carried out a very detailed and thorough enquiry into the matter and a fair appeal was carried out, involving further investigation and questioning of witnesses. The decision to dismiss the claimant was within a band of reasonable responses, that a fair employer might consider, if faced with a breach of discipline and procedure of this type in it’s business. Under the legislation and case law governing this tribunal, it finds that the dismissal is fair. The tribunal, in reaching this decision, took into account the seniority of the claimant and the fact that she had herself been involved in the disciplinary process of the respondent, when she had been a member of a panel investigating and subsequently adjudicating on a case against another employee of the respondent.

25. For the above reasons the tribunal holds that the claimant’s claims must fail. The respondent and the claimant, during the course of the hearing resolved the matter of the claimant’s claim for unpaid or underpaid wages.

Chairman:

Date and place of hearing: 4-6 May 2010, Belfast

Date decision recorded in register and issued to parties: