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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Robb v William and Sue Farmer t/a The... [2011] NIIT 00155_11IT (04 October 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/00155_11IT.html
Cite as: [2011] NIIT 00155_11IT, [2011] NIIT 155_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 155/11
CLAIMANT: Isaac Robb
RESPONDENTS: William and Sue Farmer t/a The Bay Tree
DECISION
The unanimous decision of the tribunal is that the claimant’s claims of unfair dismissal, wrongful dismissal, and sex discrimination are dismissed.
Constitution of Tribunal:
Chairman: Mr S A Crothers
Members: Mrs S Doran
Mr R Gourley
Appearances:
The claimant appeared and represented himself.
The respondents were represented by Mr N Phillips, Barrister-at-Law, instructed by Worthingtons Solicitors.
The Claim
1. The claimant claimed that he had been unlawfully discriminated against on the ground of sex, that he had been automatically unfairly dismissed and wrongly dismissed in breach of his contract of employment. The respondents denied the claimant’s allegations in their entirety.
The Issues
2. The issues before the tribunal were as follows:-
(1) Whether the claimant was discriminated against and/or less favourably treated by the respondents contrary to the Sex Discrimination (Northern Ireland) Order 1976 (as amended), in respect of the allegations contained within paragraph 9 of the claimant’s claim form presented to the tribunal on 21 December 2010.
(2) Whether the claimant was wrongfully dismissed by the respondents.
(3) Whether the claimant was automatically unfairly dismissed contrary to Article 130A of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).
Sources of Evidence
3. The tribunal heard evidence from the claimant and on his behalf from his wife Grainne Robb. It also heard evidence from Sue Farmer and her business partner and son William Farmer, together with John Richardson, consultant, on behalf of the respondents. The tribunal was presented with bundles of documentation and took into account only documentation referred to it 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) On a date between 15 and 22 May 2010, the claimant was employed by the respondents and shortly thereafter became head chef in the respondents’ business. The sous chef was Ms Kathryn Masterson. The claimant was paid £497.00 gross per week (£400.00 net). The claimant did not receive a written contract of employment. Furthermore the respondents did not have any written disciplinary, grievance, or harassment policies. It was common case that the effective date of termination of the claimant’s employment was 23 September 2010. Correspondence from William Farmer to the claimant dated
23 September 2010 reads as follows:-
“Dear Mr Robb
I am writing to advise you that, unfortunately The Bay Tree has made the decision to dismiss you on the grounds of gross misconduct.
This action is being taken as a result of serious allegations of sustained sexual harassment & bullying in the workplace, resulting in legal action being taken against us as your employers.
Your dismissal is effective immediately and we will calculate and forward any holiday pay accrued in your time working for us.
Yours sincerely
William Farmer”.
(ii) The claim form, presented to the Tribunal on the claimant’s behalf by his solicitors on 21 December 2010, alleged that the respondents had failed to adhere to various requirements of the statutory procedures in relation to both discipline and grievance. The claimant summarised his position as at 23 September 2010 in correspondence to the respondents which states as follows:-
“Dear Sirs
Re: Correspondence Dated 23 September 2010
Allegations of Sustained Sexual Harassment and Bullying
Wrongful Dismissal
Appeal Against Dismissal
Statutory Modified Grievance
I refer to the above and your correspondence of 23.09.10.
I would state my disappointment at the manner in which I have been treated today. To receive correspondence from you with reference to “sustained sexual harassment and bullying” with the conclusion that I be dismissed with immediate effect, without any investigation whatsoever, I would surmise is a textbook example of Wrongful Dismissal.
For the sake of clarity I think it would be useful to remind you of the processes which need to be established in order for a fair outcome in any disciplinary situation to eventuate. Primarily, I should have been suspended on full pay pending the outcome of any investigation into the allegations of sustained sexual harassment and bullying. I should then have been asked for my version of events, by way of statement or interview, while separate from, and unable to affect, the integrity of the investigation process.
Other members of staff should then also have been interviewed and all statements taken and collated. A meeting should then take place between all senior members of the Bay Tree with all the information collated and statements taken. The individuals affected by any possible decisions or outcomes should then have been invited to meet with senior individuals from the Bay Tree and discuss any possible outcomes as well as the result of their findings and investigations.
A decision should then have been taken by the Bay Tree and the decision should been communicated to any affected members with immediate effect. The outcome for me was of course termination and given to me in writing, however, there was simply no process and I was given no right of appeal. It is standard industrial practice for the right to appeal to be communicated to an employee, whose employment is terminated, in writing, thereby allowing any such individual to appeal, normally, within 5 working days.
It is my belief that good industrial practice in general, and especially in relation to your disciplinary procedures has been totally ignored. Your failure to adequately investigate these allegations has led you to erroneously conclude that I be dismissed. This glaring failure and procedural lapse has cost me my job, my livelihood and my perhaps yet, my reputation.
It is regretful that I now place myself in a position where I must rigorously challenge my wrongful dismissal and defend myself against all allegations.
It should be pointed out that at no point was any of the content of the serious allegations presented to me, nor was I asked for my interpretation of any events alleged by other individuals within the workplace. I am very disappointed by this massive oversight and I cannot understand why the member of staff I perceived to be involved in promoting the allegations can do so without challenge or recourse to investigation. It appears that her word stands firmly against mine.
By way of conclusion, I am anxious to maintain my reputation within the Holywood community, and to have an allegation levelled against me bereft of substance or verification, resulting in my dismissal from work, is something I will not take lightly.
It is my intention to vehemently challenge your decision and I ask that you consider the above by way of my appeal to your dismissal or me.
I look forward to hearing from you in due course in line with the statutory modified grievance procedure.
Yours faithfully
Isaac Robb”
(iii) It was not disputed that the claimant was paid one week’s notice to cover the fact that it would have taken a week to hold an investigation and a disciplinary hearing.
(iv) The respondents summarised their position regarding the reasons for the claimant’s dismissal in correspondence to him of 28 September 2010 as follows:-
“Dear Mr Robb
Thank you for your correspondence received yesterday (27/09/10) regarding the proposed appeal hearing. We are happy to have the meeting on Wednesday 6th October as requested at a convenient venue. Please confirm by no later than Friday 1st October your choice of venue.
In terms of the allegations levelled at you, you were dismissed for sexual harassment and bullying in the workplace following an investigation. There are several witnesses, including myself, and we are in the process of collating witness statements. To give you an insight, one particular statement from a member of staff reads as follows: “At the kitchen pass, I saw Isaac Robb with his arm around Kathryn Masterson’s neck. He was trying to nibble on her ear and kiss her on the cheek. The look of fear on her face was very evident and she froze still not knowing what to do.” Saturday 7th August 2010, 8.30 pm approx. I will also be submitting my own account, when I saw you corner Ms Masterson from behind and gently kiss her on her bare arms, again causing her visible discomfort. I trust that these examples provide you enough detail as to the allegations.
Regarding the person chairing the appeal meeting, Mr Richardson is an independent management consultant who we liaise with on a monthly basis. Mr Richardson is appropriate, capable and above all necessary to maintain impartiality as he has not been involved in your dismissal so far.
Pleas note that our original letter stated that, “your companion may be either a work colleague or a trade union official of your choice”. You will therefore understand that your sister, Melissa Robb, will not be able to act as your representative.
I look forward to hearing from you.
Yours sincerely
William Farmer”
(v) The tribunal accepts the respondents’ evidence that there was sexualised talk involving the claimant and female members of staff and that William Farmer witnessed an incident of the nature referred to in his correspondence to the clamant dated 28 September 2010. This incident occurred some time during the two week period preceding a series of floor staff complaints of a sexual nature against the claimant on 27 July 2010, following a training session.
(vi) At all times during the hearing before the tribunal, the claimant denied each and every allegation made against him.
(vii) The tribunal is satisfied that Ms Masterson felt under pressure in the kitchen, especially when the claimant became head chef. Furthermore, the tribunal is satisfied that Sue Farmer and William Farmer were somewhat overawed by the claimant and were not prepared to act decisively following the incident witnessed by William Farmer and the complaints made by the floor staff.
(viii) In an attempt to address the issues raised by the floor staff on 27 July 2010, Sue Farmer and William Farmer arranged a function at Nicks Warehouse Restaurant in Belfast on the evening of 27 July 2010 and invited the claimant together with Ms Masterson and her partner Stuart Hawthorne who also worked for the respondents as manager. William Farmer spoke separately to the claimant and requested him to desist from his inappropriate behaviour. He also referred to the incident he had witnessed in the two week period preceding 27 July 2010. The tribunal accepts that the claimant was dismissive of the allegations against him. However following a break outside the restaurant with Stuart Hawthorne, the claimant stated to William Farmer not to worry and that he understood the situation. William Farmer had already administered an informal verbal warning to the claimant and felt that the situation would improve. The tribunal accepts William Farmer’s evidence that he was naïve, that he did not know what to do with the information before him (as he had not encountered such behaviour previously), and that, with hindsight, he would have dismissed the claimant much earlier.
(ix) William Farmer went on holiday for a period of two to three weeks from on or about 29 July 2010. Stuart Hawthorne placed an entry in his diary on 7 August 2010 alleging that, in or about 8.30 pm, he witnessed the claimant with his arm around Ms Masterson’s neck and nibbling on her ear. He concluded the entry with the words “she froze still! (saw it myself)”. The tribunal is satisfied that Stuart Hawthorne subsequently brought this diary entry to Sue Farmer’s attention but she chose not to effectively address it.
(x) William Farmer went on leave again on 26, 27, 28 August 2010. On
2 September 2010 Kathryn Masterson walked out of the respondent’s premises as she had done on previous occasions. A meeting took place on
3 September at the Coffee Yard next door to the respondents’ premises involving Sue Farmer, William Farmer and Kathryn Masterson in an effort to discuss the possibility of her return to work. Kathryn Masterson subsequently forwarded a grievance letter to the respondents dated 8 September 2010 which states as follows:-
“Dear Sue & William
When I completed my shift yesterday (7 Sept 2010) I went home and thought long and hard about my current work situation. I have now reached a conclusion and I have decided not to return to The Bay Tree.
As I have pointed out to you on a number of occasions I am very unhappy and unnerved with regards to the inappropriate behaviour towards me by the Head Chef, Isaac Robb. I feel that you as my employers have dismissed my continual complaints and concerns and have been left with no other option but to leave.
I now wish to make a formal complaint against you as my employer for failing to fulfil your obligations and duty of care to protect me as your employee.
I also wish to complain against Isaac Robb’s ongoing sexual harassment and bullying as he has abused his position of responsibility by creating an intimidating, hostile and degrading environment for me as an employee.
I have been the victim of unnecessary touch, unwanted physical contact, verbal abuse, sexual remarks as well as bullying in a close quarters working environment.
I have recorded all incidents that have been ongoing over the period of the last two months and I will be using these as evidence.
As proprietors of The Bay Tree it is necessary to bring this to your attention as you have a responsibility to take action against what is a criminal offence.
I have suffered severe stress and anxiety not to mention the sleepless nights and emotional turmoil. This whole experience has had a serious affect on my health and my quality of life.
I have taken legal advice from a Solicitor and I will be lodging a formal complaint to an Employment Tribunal.
Yours sincerely
Kathryn Masterson”
(xi) A grievance meeting was subsequently held at the Culloden Hotel on
20 September 2010 when Kathryn Masterson, Sue Farmer, William Farmer and John Richardson were present. The tribunal carefully examined the notes taken by John Richardson regarding this meeting which includes a reference to the meeting in the Coffee Yard on 3 September 2010. The grievance outcome letter to Kathryn Masterson dated 21 September 2010 reads as follows:-
“Dear Kathryn
Thank you very much for attending the grievance meeting yesterday. You presented your case very well and allowed us to understand the full extent of the difficulty of your predicament at The Bay Tree.
We very much regret the way events unfolded and sincerely hope that some resolution can be found. We absolutely do not wish to be associated with the behaviour of a sexual predator & bully. Subsequent to the grievance meeting, a course of action became clear. With immediate effect, Isaac Robb will be dismissed on the grounds of gross misconduct. We feel that failure to take this action would compromise our principles.
In these changed circumstances, we hope that you might reverse your decision to leave The Bay Tree. Your return would delight the existing staff, ourselves included, and would be met with our full support.
We look forward to hearing your response.
Yours sincerely
William and Sue”
(xii) The claimant appealed against
his dismissal. The appeal was ultimately heard on 6 October 2010 after a
postponement request by the claimant regarding a proposed earlier date. John
Richardson heard the appeal and was assisted by Sue Farmer as note taker. In
the course of preparing for the appeal, the respondents, at the request of William
Farmer but not with his assistance, obtained 13 witness statements from various
members of staff who made allegations of a sexual nature against the claimant.
The claimant prepared detailed responses to these statements for the purposes
of the appeal and adopted, as part of his evidence before the tribunal, a
lengthy document dated 6 October 2010 which was also considered at his appeal
hearing. Notwithstanding the deficiencies in the procedure (including
informing
Kathyrn Masterson of the claimant’s dismissal two days before he was so
informed), the tribunal is satisfied that the respondents genuinely believed
that other incidents of the nature alleged by various witnesses had occurred.
(xiii) In relation to his sex discrimination claim, the claimant named Kathryn Masterson as his comparator. However in his written submissions to the tribunal, he also referred to a hypothetical comparator, but did not address this in his evidence.
(xiv) Paragraph 9 of the claimant’s claim form, referred to in the first legal issue in paragraph 2(1) of this decision in relation to his sex discrimination complaint, reads as follows:-
“I then lodged a further grievance on the basis that they did not provide me with any information even at that stage, upon which I could be better advised of the process which had been triggered against me. I encouraged them to provide me with all relevant information in line with good industrial practice and in the interests of natural justice, so that I could prepare myself to face the allegations prior to an appeal hearing being convened. I am satisfied on the basis of the information, limited as it was, conveyed to me, that the Respondent effectively accepted that it had not engaged in an appropriate investigation process and in the alternative that it did not correctly conclude its investigations prior to terminating my employment. It became evident to me, subsequent to my request for information that the employer was still in the process of collating documents, a process which ought to have been conducted and completed well in advance of my dismissal. I made the observation to them in correspondence that their failure to follow the minimum steps required, automatically rendered [my] dismissal, unfair and wrongful in the context of my employment. I therefore requested a copy of all documentation well in advance of the appeal meeting which was scheduled for
Wednesday 6 October 2010. I made observations to my employer that it was very apparent that they had preferred the information furnished by my female colleague over any contribution that I could have made. They operated
immediately without recourse to me, terminating the relationship with immediate effect. I conveyed to them my sense of less favourable treatment on the grounds of my gender, and I was satisfied at this point that my employer had discriminated against me on said basis. I highlighted to them the disparity in treatment between myself and my female colleague, in that they immediately removed me from the workplace refusing me any opportunity of a fair hearing or indeed any hearing at all. On the other hand she was immediately accepted as a credible complainant, completely to my detriment.”
The Law
5. (1) Article 126 of the 1996 Order deals with the right of an employee not to be unfairly dismissed. It provides:-
“126 – (1) An employee has the right not to be unfairly dismissed by his employer.
(2) Paragraph (1) has effect subject to the following provisions of this Part (in particular Articles 140-144)”.
(2) Article 130A provides as follows:-
“130A – (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if -
(a) One of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal.
(b) The procedure has not been completed, and
(c) The non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.”
(3) In order to avail of the right specified in Article 126, an employee must normally have been continuously employed for a period of not less than one year ending with the effective date of termination – Article 140(1). The Order provides for a number of exceptions to this requirement. Article 130A does not constitute such an exception.
(4) By virtue of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 a tribunal has jurisdiction to deal with certain breach of contract claims which arise or are outstanding on the termination of the employee’s employment. A wrongful dismissal claim is different from a complaint of unfair dismissal. The reasonableness or otherwise of an employer’s actions is irrelevant. The tribunal has to consider whether the employment contract has been breached. If so, and dismissal is the result, the dismissal is wrongful but not necessarily unfair. The law in wrongful dismissal is summarised in Paragraph 6 of Lord Justice Rix’s judgement in the case of Dunn v A A H Limited (2010) EWCA Civ 183, as follows:-
“Thus, it is common ground that the law in this connection is conveniently stated in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 1 WRL 698, in Neary v Dean of Westminster [1999] IRLR 288 and in this court in Briscoe v Lubrizol [2002] IRLR 607 (see in particular paragraph 22 of Lord Jauncey of Tullichettle’s decision in Neary and paragraphs 108 and 109 of Ward LJ’s judgment in Briscoe v Lubrizol). As Lord Jauncey said at the end of paragraph 22 of Neary:
‘There are no doubt many other cases which could be cited on the matter but the above four cases demonstrate clearly that conduct amounting to gross misconduct justifying dismissal must so undermine the trust and confidence which is inherent in the particular contract of employment that the master should no longer be required to retain the servant in his employment’.”
Burden of Proof Regulations
(5) Article 63A of the Sex Discrimination (Northern Ireland) Order 1976 (as amended) states as follows:-
“(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:-
“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
6. The tribunal carefully considered written submissions from the claimant and the respondent’s representatives (which included references to authorities), together with oral submissions. Copies of the written submissions are appended to this decision.
Conclusions
7. 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:-
(i) The claimant has not proved facts from which the tribunal could conclude in the absence of an adequate explanation from the respondents that the latter have committed an unlawful act of discrimination in treating the claimant less favourably on the ground of sex. The tribunal is satisfied that the reason for the claimant’s dismissal was gross misconduct and had nothing to do with sex discrimination.
(ii) The claimant had been continuously employed for a period of less than one year ending with the effective date of termination, and therefore cannot claim unfair dismissal in the circumstances of this case.
(iii) The tribunal is satisfied that the claimant was not wrongfully dismissed and, in any event, he would have been entitled to one week’s notice pay, which in fact has been paid.
Chairman:
Date and place of hearing: 5-9 September 2011, Belfast.
Date decision recorded in register and issued to parties:
Case ref: 115/IT
IN THE INDUSTRIAL TRIBUNAL IN NORTHERN IRELAND
Between
ISAAC ROBB
Claimant
V
WILLIAM and SUE FARMER T/A THE BAY TREE
Respondent
Sexual Discrimination
1. According the case of Shamoon -v- Chief Constable the appropriate manner for performing the comparison is to look first to the Comparator and then to the issue of less favorable treatment.
2 Sexual discrimination: Comparator is a hypothetical female head chef against whom allegations of sexual harassment had been made. Sexist comments, attitude and actions in the workplace by Sue Farmer serve to demonstrate the discriminatory attitude of the Respondent. Therefore the issue of less favorable treatment can be inferred to be on the basis of a prohibited ground. The Respondent would not have acted as they did against the hypothetical comparator. The claimant as a male was seen to be at greater risk of carrying out the complained of harassment and was therefore dismissed summarily. A female hypothetical comparator would have been viewed as less inclined to have carried out the harassment alleged and thus the employer would not have invoked the modified procedure.
3. In considering the hypothetical comparator the Tribunal is entitled to look to the treatment of Kathryn Masterson as an unidentical but not wholly dissimilar case. Chief constable OF West Yorkshire —v- Vento [2001] IRLR 124.
4. Less favorable treatment: the comparator would not have been dismissed under the modified procedure but would have been dealt with under the standard procedure. The comparator would therefore have been given the opportunity to address the employer in a formal meeting and answer any allegations against them. It is therefore to the Detriment of the claimant that he was not given the opportunity to answer the allegations leveled against him and thus not be given the opportunity to avoid summary dismissal.
Unfair Dismissal
5. The Claimant submits that it is open to the tribunal to make a finding of unfair dismissal. It is acknowledged that an automatically unfair dismissal on the basis of Article 130A of the 1996 cannot stand alone, however it is submitted that the dismissal of the employee on the basis of discriminatory practices leaves it open to the Tribunal to find the dismissal unfair and excluded from the 1 year continuous service requirement. It is submitted that the list of exceptions to the 1 year rule contained within the 1996 Order is not exhaustive. It is therefore open to the Tribunal to make an enhanced award under Article 17(3)(c) of the Employment (Northern Ireland) Order 2003.
6. The Respondent did not carry out the appropriate statutory procedure as set out in the provisions of the 2003 order. It was not open to the Respondent to dismiss the Claimant summarily. By their own admission the Respondent did not act immediately upon becoming aware of an allegation of sexual harassment. By their own admission the Respondent was not equipped to deal with the situation. If the Respondent was of the view that the sexual harassment alleged occurred at all or if the Claimant’s behavior in the kitchen could be described as sexual harassment then it is incumbent on the Respondent to act immediately. If the behavior was sufficiently serious on the alleged June/July incident then the Respondent should have summarily dismissed the Claimant at that point. It was not open to the Respondent to subsequently dismiss the Claimant without enquiry upon subsequently receiving a letter of complaint from Kathryn Masterson. O’Neill v Woolridge Ecotech [2008] All ER (D) 34 FEB EAT. The decision to dismiss was therefore automatically unfair if such a finding is open to the Tribunal.
7. It is put forward by the Claimant in evidence that the decision to summarily dismiss was predicated on the apprehension of the threat of legal proceeding by Katherine master son. This lead the Claimant to dismiss the Claimant without notice or enquiry. The general principles of Rogan —v- The South Eastern Health and Social Care Trust should, it is submitted, provide guidance to the Tribunal whether or not the ground of unfair dismissal is considered by the Tribunal and when considering the ground of wrongful dismissal. Contrary to the principles laid out in Rogan The Respondent did not establish a belief in the particular misconduct, the Respondent had no reasonable grounds to sustain that belief and they did not carry out as much investigation as was reasonable in the all the circumstances. The Respondent did not believe that the allegation of sexual harassment was a genuine complaint otherwise they would have taken decisive action on being alerted to the allegation. They did not carry out any investigation and they’re belief was not sustained rather it was fabricated in the face of legal proceedings.
8. It is also submitted that the defense that the Claimant would have been dismissed regardless of procedure is not a defense in the circumstances of this case. The Claimant contends that he would have been dismissed due to the threat of Legal proceedings and that any allegation would not have been made out other than if it had been fabricated by the Respondent.
Wrongful dismissal
9. The Respondent did not provide the Claimant with a written contract. The Claimant worked under a verbal contract. The requirement to adhere to the Statutory Dismissal procedures is contained within a verbal contract just as it is read into a written contract. The Claimant should not be prejudiced by the failure of the Respondent to provide him with a written contract. The Respondent has breached this term of the contract and has further breached the implied term of trust and confidence implied in the Claimant’s contract.
10. The Claimant’s conduct did not warrant summary dismissal. The Claimant refers to the paragraph 6 above. The argument set out is relevant to a finding of wrongful dismissal. By its own admission the Respondent did not act immediately upon becoming aware of an allegation of sexual harassment. By its own admission the Respondent was not equipped to deal with the situation. If the Respondent was of the view that the sexual harassment alleged occurred at all or if the claimant’s behavior in the kitchen could be described as sexual harassment then it is incumbent on the Respondent to act immediately. If the behavior was sufficiently serious on the alleged June/July incident then the respondent should have summarily dismissed the Claimant at that point. It was not open to the Respondent to subsequently dismiss the Claimant without enquiry upon subsequently receiving a letter of complaint from Katherine Masterson.
11. The Claimant also submits that paragraph 7 above is relevant to a finding of wrongful dismissal.
Wong v Igen Ltd (formerly Leeds Careers Guidance)
Webster v Brunel University
Emokpae v Chamberlin Solicitors
Also known as:
Chambelin Solicitors v Emokpae
Brunel University v Webster
Igen Ltd (formerly Leeds Careers Guidance) v Wong
Court of Appeal (Civil Division)
18 February 2005
Case Analysis
Where Reported
[2005] EWCA Civ 142; [2005] 3 All ER 812; [2005] ICR 931; [2005] IRLR 258; (2005) 102(13) L.S.G. 28; (2005) 149 S.J.L.B. 264; Times, March 3, 2005; Official Transcript
Case Digest
Subject: Employment Other related subjects: Criminal evidence
Keywords: Burden of proof; Disability discrimination; Equal treatment; Race discrimination; Sex discrimination
Summary: The Court of Appeal gave guidance on the interpretation and
application of the
statutory provisions shifting the burden of proof in direct discrimination
cases in the Sex
Discrimination Act 1975 s.63A, the Race Relations Act 1976 s.54A and the
Disability
Discrimination Act 1995 s.17A(IC) and revised and approved the guidance given
in Barton v
Investec Henderson Crosthwaite Securities Ltd [2003] ICR 1205.
Abstract: The appellant employers appealed against decisions in three cases raising questions on the interpretation and application of the statutory provisions shifting the burden of proof in direct discrimination cases. In the first case the respondent complained that she had been the subject of unlawful racial discrimination on the part of her managers, all of whom were white. The employment tribunal had held that the managers had behaved unreasonably and that unexplained unreasonable conduct was capable of giving rise to an inference of unlawful discrimination. The
EAT dismissed an appeal. In the second case the respondent was summarily dismissed because of rumours about a relationship between her and her male office manager .The tribunal found that that was less favourable treatment on the ground of sex and the EAT upheld that decision. In the third case the respondent, who worked as a university help desk officer, complained of racial discrimination arising from an incident when she had been on the telephone and she claimed she had overheard someone in the background using the word “Paki” The tribunal found that the word “Paki” was said but that it could not infer that it had been used by a university staff member. The EAT allowed an appeal on the basis that the alleged discriminatory act could have been committed by the university. The appellants in the first case submitted that the tribunal had erred by not specifying the primary facts it relied upon to justify concluding that it was open to it to draw an inference of discrimination, and that the tribunal wrongly found that the appellants had failed to discharge the burden of proof once it had transferred to them. In the second case the appellants submitted that a dismissal because of rumours of a relationship between the respondent and the office manager was not a dismissal on the ground of her sex, and that the appropriate comparator would be a male employee with whom it was rumoured that the manager was having a homosexual relationship, who would not have been treated any differently from the respondent.
Held, giving judgment accordingly, that (1) the new provisions in the Discrimination Acts as amended, which implemented European Directives, provided that if an applicant showed that he had been treated less favourably than others in circumstances which were consistent with that treatment being based on grounds of race or sex, the tribunal should draw an inference that such treatment was discriminatory unless the respondent could satisfy the tribunal that there was an innocent explanation. (2) The provisions required the tribunal to go through a two stage process. The first stage required the complainant to prove facts from which the tribunal could, apart from the section, conclude in the absence of an adequate explanation that the respondent had committed, or was to be treated as having committed, the unlawful act of discrimination. If the complainant proved those facts, the second stage required the respondent to prove that he did not commit or was not to be treated as having committed that act. (3) The words “in the absence of an adequate explanation”, followed by ‘could”, indicated that at the first stage the tribunal was required to assume that there was no adequate explanation for those facts. (4) It was for the complainant to prove the facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent committed an unlawful act of discrimination. It was not sufficient to prove facts from which the tribunal could conclude that the respondent “could have committed” such an act. It was not sufficient for the complainant to prove only the possibility rather than the probability of those facts at the first stage. (5) In the first case the tribunal directed itself properly on the law and did not fail to make the necessary findings of primary fact from which inferences could be drawn. The finding of unexplained unreasonable conduct enabled the tribunal to draw the inferences satisfying the requirements of the first stage. Tribunals should not too readily infer unlawful discrimination on a prohibited ground merely from unreasonable conduct where there was no evidence of other discriminatory behaviour on such ground, but the tribunal was not wrong in law to draw that inference, and there was no perversity challenge. At the second stage the tribunal did consider whether the appellants had discharged the onus on them by their explanations, but it found those explanations inadequate for the reasons which it gave. The appeal was dismissed. (6) In the second case the respondent was dismissed because of the rumours, but a dismissal because of rumours of a relationship between
the respondent and her office manager was not a dismissal on the ground of her sex, Martin v Lancehawk Ltd (t/a European Telecom Solutions) approved. The appropriate comparator was a male employee with whom the manager had had a homosexual affair, and such a person would not have been treated any differently from the respondent. The decisions of the tribunal and EAT were flawed. (7) In the third case the EAT erred in its construction of the Race Relations Act 1976 s.54A. The tribunal found and was entitled to find that the claim had not been proved at the first stage because the respondent did not establish that it was a member of staff who used the word “Paki”. (8) The guidance in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] I C R 1205 was only guidance and tribunals had to apply the statutory language, Barton approved. No error of law was committed by a tribunal failing to set out the guidance or to go through it paragraph by paragraph. The guidance offered practical help in a way which most tribunals and EATs found acceptable. The court set out the guidance in the form in which it approved it.
Judge: Kennedy, L. J.; Peter Gibson, L. J.; Scott Baker, L. J.
Counsel:
For the appellants in the Igen
Ltd case: Elizabeth Slade QC, Richard Leiper. For the
respondent Wong: Antony White QC, James Laddie. For
the appellants
in the Chamberlain
case:
Mathew Purchase. For the respondent Emokpae: Not represented. For the appellant
Brunel
University: Neil Vickery. For the respondent Webster: Paul Troop. For the
interveners: Robin
Allen QC, Anna Beale.
Solicitor: For the appellants in the Igen Ltd case: Lupton
Fawcett. For the respondent Wong:
Ford & Warren of Leeds. For the appellants in the Chamberlain case: CT
Emezie Solicitors. For the appellant Brunel University: Eversheds LLP. For the
respondent Webster: Thompsons.
Appellate History & Status
For complex appellate history, see Graphical History
Employment Appeal Tribunal
Wong v Igen Ltd (formerly Leeds Careers Guidance)
Official Transcript
Affirmed
Court of Appeal (Civil Division)
Wong v Igen Ltd (formerly Leeds Careers Guidance)
[2005] EWCA Civ 142; [2005] 3 All ER 812; [2005] ICR 931; [2005] IRLR 258; (2005)
102(13) L.S.G. 28; (2005) 149 S.J.LB. 264; Times. March 3,2005; Official
Transcript
Related Cases
Emokpae v Chamberlin Solicitors
[2004]
I.C.R. 1476; [2004] IRLR 592; Official Transcript; EAT
Webster v Brunel University
Unreported; EAT
Significant Cases Cited
Martin v Lancehawk Ltd (t/a European Telecom Solutions)
Official Transcript; EAT
Barton
v
Investec Henderson Crosthwiate Securities Ltd
[2003] ICR 1205; [2003] IRLR 332;(2003) 100(22) L.S.G. 29; Times,
April 16, 2003;
Official Transcript; EAT
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All Cases Cited |
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Sort by: Most Recent v Go |
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Bahl v Law Society [2004] EWCA Civ 1070; [2004] IRLR 799; (2004) 154 N.L.J. 1292; (2004) 148 S.J.LB. 976; Times. October 7, 2004: Official Transcript; CA (Civ Div) |
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Sinclair
Roche &
Temperley v Heard (No.1) |
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Martin v Lancehawk Ltd (t/a European Telecom Solutions) Official. Transcript; EAT
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Bahl v Law Society [2003] I.R.L.R.640;
(2003) 147 S.J.L.B.
994; Official Transcript;
EAT |
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University of Huddersfield v Wolff [2004] ICR 828; [2004] IRLR 534; Official Transcript; EAT
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[2003] UKHL 33; [2003] 4 All ER 1113; [2003] 2 CMLR 44; [2003] ICR 867; [2003] I.R.L.R. 484; (2003) 74 B.M,L.R. 109: (2003) 100(30) L.S.G. 30; (2003) 147 S.J.L.B. 732; Times, June 23, 2003; Independent, June 24, 2003; Official Transcript; HL
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Advocate General for Scotland v MacDonald [2003] UKHL 34; [2004] 1 All ER 339; 2003 SC (HL) 35; 2003 SLT 1158; 2003 S.C,L.R. 814; [2003] ICR 937; [2003] IRLR 512; [2003] ELR 655; (2003) 100(29) L.S.G. 36; (2003) 147 S.J.L.B. 782; 2003 GWD 23-677; Times, June 20, 2003; Official Transcript; HL
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Nelson v Carillion Services Ltd [2003] EWCA Civ 544; [2003] ICR 1256; [2003] IRLR 428; (2003) 100(26) L.S.G. 36; (2003) 147 S.J.L.B.504; Times, May 22, 2003; Independent, June 16, 2003; Official Transcript; CA (Civ Div) |
Barton v Investec Henderson Crosthwaite Securities Ltd
[2003] ICR 1205; [2003] I/R.l.R. 332; (2003) 100(22) L.S.G. 29; Times, April 16, 2003;
Official Transcript; EAT
Shamoon v Chief Constable of the Royal Ulster Constabulary
[2003] UKHL 11;[2003] 2 All ER 26; [2003]N.I. 174; [2003] ICR 337; [2003] IRLR 285;
(2003) 147 S.J.L.B. 268; Times, March 4, 2003; Official Transcript; HL (NI)
Warwick Park School Governors v Hazlehurst
[2001] EWCA Civ 2056; Official Transcript; CA (Civ Div)
Chief Constable of West Yorkshire v Khan
[2001] UKHL 48; [2001] 1 WLR 1947; [2001] 4 All ER 834; [2001] ICR 1065; [2001]
I.R.L.R. 830; [2001]Emp. L.R. 1399; (2001) 98(42) L.S.G. 37; (2001) 145 S.J.L.B. 230 Times,
October 16, 2001; Daily Telegraph, October 16, 2001; Official Transcript; HL
Anya v University of Oxford
[2001] EWCA Civ 405; [2001] I.C.L.R. 847; [2001] IRLR 377; [2001] Emp LR 509; [2001]
E.L.R. 711; Times, May 4, 2001; Official Transcript; CA (Civ Div)
Chief Constable of West Yorkshire v Khan
[2000] I.C.R. 1169; [2000] I.R.L.R. 324; (2000) 150 N.L.J. 308; Times, March 15, 2000;
Independent, March 3, 2000; Official Transcript; CA (Civ Div)
Nagarajan v London Regional Transport
[2000] 1 AC 501; [1999] 3 WLR 425; [1999] 4 All ER 65; [1999] ICR 877; [1999]
I.R.L.R. 572; (1999) 96(31) L.S.G. 36; (1999) 149 N.L.J. 1109; (1999) 143 S.J.L.B. 219; Times
July 19, 1999; Independent, October 11, 1999; Official Transcript; HL
Glasgow City Council v Zafar
[1997] I W.L.R. 1659; [1998] 2 All E.R. 953;
1998 SC (HL) 27; 1998 SLT 135; [1998]
I.C.R. 120; [1998] IRLR 36; (1997) 94(48) L.S.G. 29; (1998)142
S.J.L.B. 30; Times,
December
8, 1997; HL
Qureshi v Victoria University of Manchester
[2001] ICR 863; EAT
Webb v EMO Air Cargo (UK) Ltd
[1995] 1 WLR 1454; [1995] 4 All E.R. 577; [1996] 2 CMLR 990;
[1995] ICR 1021;
[1995] I.R.L.R. 645; Times, October 20, 1995; Independent, October26, 1995; HL
Specialarbejderforbundet i Danmark v Dansk Industri
(C400/93)
[1995] All E.R. (E.C.) 577; [1995] E.C.R. 1-1275; [1996] I C.M.L.R.
515; [1996] ICR 51
[1995] IRLR 648; Times, June 23, 1995; EJC
Enderby v Frenchay HA (C-127/92)
[1994] 1 All ER 495; [1993] ECR I-5535; [1994] 1 CMLR 8; [1994] ICR 112; [1993]
I.R.L.R. 591; Times, November 12, 1993; Financial Times, November 2, 1993; EJC (1st
Chamber)
King v Great Britain China Centre
[1992] ICR 516; [1991] IRLR 513; Times, October 30, 1991; Independent, October 22,
1991; Guardian, October 16, 1991; CA (Civ Div)
Noone v North West Thames RHA (No.1)
[1988] I.C.R. 813; [1998] I.R.L.R. 195; Times, March 23, 1988; Independent, March 23, 1988;
Guardian, March 22, 1988; Daily Telegraph, April 1, 1988; CA (Civ Div)
Dobie
v Burns International Security Services (UK) Ltd
[1985] 1 W.L.R. 43;
[1984] 3
All E.R. 333; [1984] ICR 812; [1984] IRLR 329; (1985) 82
L.S.G. 517; (1984) 134 N.L.J.
832 (1984) 128 S.J. 872, CA (Civ Div)
Chattopadhyay v Headmaster of Holloway School
[1982] I.C.R. 132; [1981] I.R.L.R. 487; EAT
Khanna
v
Ministry of Defence
[1981] I.C.R. 653; [1981] I.R.L.R. 331; EAT
Bahl v Law Society
Also known as:
Law Society v Bahl
Court of Appeal (Civil Division)
30 July 2004
Case Analysis
Where Reported
[2004] EWCA Civ 1070; [2004] IRLR 799; (2004) 154 N.L.J. 1292; (2004) 148 S.J.L.B.
976;
Times, October 7, 2004; Official Transcript
Case Digest
Subject: Employment Other related subjects: Legal profession
Keywords: Comparators; Employment tribunals; Race discrimination; Reasons; Sex discrimination
Summary: The court analysed the findings and the reasoning of the employment tribunal on issues of race and sex discrimination. In particular, it focused upon the importance of the tribunal giving proper consideration to, and proper reasons for a finding of, unconscious discrimination, namely where discrimination had been inferred in circumstances where non discriminatory considerations could explain the adverse treatment complained of.
Abstract: The appellant (B) appealed against a decision ([2003] IRLR 640, [2003] C.L.Y. 1297) overturning an employment tribunal’s decision that the respondents (L, S and J) had discriminated against her on racial grounds and on the ground of her sex. B, a black Asian solicitor with British nationality, was deputy vice president of L in 1998 and vice president in 1999. Her “running mate” was S, a white male solicitor, who became president of L in 1999 and was originally encouraging and supportive to B. From late 1998, various incidents occurred in which B was allegedly abusive and bullying towards certain members of staff. Ultimately in December 1999 an official complaint was made by the union on behalf of one member of staff against B. This led to an official inquiry in February 2000, in which it was found that B had behaved aggressively and had treated staff in a “demeaning and humiliating” way. B resigned in March 2000 and brought a complaint of racial and sexual discrimination, contending that L, S and J had treated her less favourably because of her gender and racial origin. The tribunal found a minority of the complaints made out and allowed the application. That decision was overturned by the Employment Appeal Tribunal (EAT) which held that the tribunal had erred by failing to differentiate between sexual and racial discrimination and by not giving adequate weight to evidence of there being other, non discriminatory, reasons for S and Js actions. In the instant appeal, B argued that the tribunal had been entitled to find as it did.
Held, dismissing the appeal, that the decision of the EAT was correct. The tribunal had erred in its consideration of the evidence against S and J. There was insufficient evidence to support its finding that their motivation had been sexually or racially discriminatory in nature. Indeed, the tribunal had made findings elsewhere in its reasons that both S and J had other motivations for their actions, for example disdain for B’s behaviour and a desire to protect their own positions within L and those of other staff members. The fact that the tribunal rejected most of the substantive complaints against S and J made it even more unlikely that they were driven by discriminatory motives. The tribunal had therefore failed in its fundamental duty to clearly establish the factual context on which it was basing its inferences of discrimination, Warwick Park School Governors v Hazlehurst [2001] EWCA Civ 2056 applied. The tribunal had also erred in not looking at racial and sexual discrimination separately, and in its approach to the “unreasonable treatment” issue. Proof that an employer acted equally unreasonably to other employees of any race or gender could be a reason negating an inference of discrimination, but it ‘was not the only method of disproving discrimination and its absence did not automatically render the treatment discriminatory, Glasgow City Council v Zafar [1997] 1 WLR 1659 applied.
Judge: Peter Gibson, L.J.; Latham, L.J; Maurice Kay, L.J.
Counsel: For the appellant: Rambert De Mello. For the first respondent: Paul Goulding QC. For the second and third respondent: Ingrid Simler.
Solicitor: For the appellant: Khans (Ilford).
Scott-Davies v Redgate Medical Services
Employment Appeal Tribunal
II August 2006
Case Analysis
Where Reported
Case Digest
Subject: Employment
Keywords: Dismissal; Employment particulars; Length of service; Statutory dispute resolution procedures; Statutory rights
Summary: There was no free-standing right to complain of a breach of the statutory procedures under the Employment Act 2002 in the absence of a valid unfair dismissal claim.
Abstract: The appellant employee (S) appealed against a decision of an
employment tribunal not to accept his claim form. S had been dismissed by the
respondent employer (R) before he had served one year and was therefore
excluded by the Employment Rights Act 1996 s.108(1) from bringing a claim of
unfair dismissal. S maintained that if he had been allowed access to the
statutory grievance and disciplinary procedures and had been given written
particulars of his contract under s.1 of the 1996 Act, he might not have
been dismissed. The tribunal held that it had no jurisdiction to hear
free-standing complaints of failure to follow the statutory procedures
under the Employment Act 2002.
Appeal dismissed. (I) There was no remedy where there was merely a complaint that there had been non-compliance with a statutory procedure. There was no statutory provision conferring jurisdiction on tribunals to consider free-standing complaints that there had been a failure to comply with a statutory procedure. As there was no statutory right to invoke the statutory procedures in respect of a statement of written particulars under s.l of the 1996 Act, the procedures did not apply. (2) As S had been dismissed before he had completed one year of service and therefore had no statutory right to make a complaint of ordinary unfair dismissal,
there was also no requirement to use the statutory procedures before tribunal proceedings. A complaint of failure to follow a statutory procedure would only be invoked as part of an otherwise valid application, so that where a tribunal had no jurisdiction to hear a claim, there could not be any jurisdiction to link to it a complaint of failure to follow a statutory procedure.
Judge: Judge McMullen Q.C.
Counsel: For the appellant
THE INDUSTRIAL TRIBUNALS
CASE REF: 306/06; 416/06
CLAIMANT:
Kieran Joseph Harkin
RESPONDENT: Kevin Watkins T/A Watkins Scaffolding
Constitution of Tribunal:
Chairman: Mr J V Leonard
Members: Mr Lindsay
Mr Patterson
Appearances:
The claimant was not represented at hearing but the tribunal had before it written submissions presented by Mr M Canavan, Solicitor, of McGuinness & Canavan, Solicitors.
The respondent was not represented at hearing but the tribunal had before it written submissions presented by W J Hasson, Solicitor.
DECISION ON APPLICATION FOR REVIEW
The decision of the tribunal is that on foot of Rule 36 (3) of Industrial Tribunals Rules of Procedure contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, the tribunal grants the respondent’s application to review the tribunal’s decision as promulgated and the tribunal orders that the decision as originally promulgated shall be revoked in part and shall as a consequence of this be amended. The decision, as amended, is appended to this decision. In all other respects, save as hereby amended, the tribunal’s decision as promulgated shall stand.
REASONS
1. In this matter the unanimous decision of the tribunal was that the claimant was unfairly dismissed by the respondent and the tribunal ordered the respondent, subject to the recoupment provisions, to pay to the claimant the total sum of £8,816.16. The tribunal’s decision was promulgated on 9 May 2007.
2. By letter dated 22 May 2007 the respondent’s legal representative William J Hasson, Solicitor, wrote to the Office of the Tribunals (“the Office”) requesting a review of the decision insofar as it related to the 20% up-lift in compensation awarded to the claimant. The basis for the representative’s request for review was stated as follows in the said letter:-
“
(i) the provisions of Article 130A of the Employment Rights (Northern Ireland) Order 1996 are not engaged in a case such as this in which the claimant has less than one year’s service, this not being a provision (like Article 136 of the 1996 Order) exempted from Article 126 by the provisions of Article 140 of the 1996 Order.
(ii) The matter of a potential up-lift to compensation was not considered at hearing and the respondent was not given an opportunity to comment or make submissions on any potential uplift: see Laurie v Holloway [1994] ICR32.
(iii) The interests of justice therefore call for the matter to be reviewed.”
3. The Chairman of the tribunal considered the request for review and bearing in mind respectively Rules 34 and 35 of the Industrial Tribunals Rules of Procedure contained in Schedule I to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (“the Rules”), considered that the matter ought properly to proceed to be listed, firstly, to establish the respective arguments upon whether there ought properly to be a review of the tribunal’s decision, and secondly, if a tribunal were satisfied that there ought to be such a review, for the review hearing to proceed immediately thereafter.
4. In consequence of further correspondence between the Office and the respective representatives acting for the claimant and the respondent, the parties indicated that they were each content to rely upon written submissions and that they did not require to attend an oral hearing. Accordingly, the Office received from the representatives written submissions dated, respectively, 28 June 2007 on behalf of the respondent, and 29 June 2007 on behalf of the claimant.
5. The matter was duly listed for hearing on 2 July 2007 and the tribunal sat to consider the written submissions that were before it, in pursuance of Rule 36 of the Rules.
THE SUBMISSIONS
The Respondent’s written submissions
6. For the respondent, it was submitted that the tribunal had rightly decided that it had jurisdiction to entertain the claimant’s claim that he had been unfairly dismissed under Article 126 and Article 132 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”). This was because the requirement to have completed one year’s continuous service (which on the facts had not been attained by the claimant in this case) was not required for the purposes of an Article 132 complaint (in that regard see Article 140 (3) (c) of the 1996 Order). However the tribunal had proceeded to determine that the dismissal was additionally unfair under Article 130A of the 1996 Order (reference being made to paragraph 26 of the tribunal’s decision as promulgated). This, it was submitted, was a free-standing basis under which an impugned dismissal might be said to be unfair. However, it was submitted that the right to claim that a dismissal was unfair by operation of Article I30A was not exempted from the requirement to have completed one year’s service; it was not one of the provisions exempted by Article 140 of the 1996 Order. In order to pursue a claim of unfair dismissal by operation of Article 130A, the claimant needed to show one year’s continuous service. It was submitted that the tribunal had misdirected itself in that regard. Accordingly the tribunal’s up-lift of compensation in this case (set at 20%) was incorrect. It was
further submitted on behalf of the respondent that the matter of up-lift had not been raised by any party at the hearing of the matter and for the tribunal to proceed to determine an up-lift in the absence of argument would amount to a denial of natural justice. Reference was made to the case of Laurie v Holloway [1994] 1CR32. The respondent had not been given an opportunity to make representations on any appropriate up-lift.
The Claimant’s written submissions
7. For the claimant, the tribunal was referred to Part Xl of the 1996 Order. It was submitted that it was quite clear from the evidence adduced by the claimant that the respondent was in breach of Article 130A of the 1996 Order. Articles 126, 130A and 140 of the 1996 Order were all contained in Part Xl of the Order and pertained to the right not to be unfairly dismissed. References therefore within Part Xl were implicitly relating to unfair dismissal matters. The amended Article 130A therefore when it stated that “an employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed….” was referring directly to any unfair dismissal whether grounded upon one year’s continuous service or by way of assertion of a statutory right (and thus exempt from the service requirement). It was submitted that the claimant therefore fell squarely within the terms of Article 130A. As such, given the respondent’s procedural unfairness in dismissing him, the claimant was entitled to an up-lift in his award as had been provided for in the tribunal’s decision. Further, regarding the issue of procedural unfairness, whilst the claimant’s representative did not have a full note of what he had said during the hearing, it was suggested that there had possibly been an allusion to the issue of procedural unfairness in the way the claimant was dismissed, and to Article 130A of the 1996 Order. The respondent’s defence had been based on the assertion that the claimant had not been dismissed; the alternative argument was not available to the respondent.
THE TRIBUNAL’S DETERMINATION
8. The tribunal has carefully noted the respective written submissions made on behalf of the respondent and the claimant in this application for a review of the tribunal’s decision. Firstly, the tribunal considered the respondent’s submission regarding the necessity or otherwise to have completed one year’s continuous service in order to avail of the operation of Article 130A of the 1996 Order. As is mentioned in the decision as promulgated, Article 130A was introduced into the 1996 Order on foot of the Employment (Northern Ireland) Order 2003 (“the 2003 Order’). This provides that an employee who is dismissed shall be regarded for the purposes of that part of the 1996 Order as unfairly dismissed if the employer has failed to follow the statutory dismissal procedures that are made applicable. These statutory dismissal procedures arise from the 2003 Order and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (“the 2004 Regulations”). Taken together, the effect is that in an appropriate case the tribunal may enhance compensation (as it did in this case) by a percentage amount of up to 50%. The argument made on behalf of the respondent is that, when one has regard to Article 140 of the 1996 Order, one sees therein a list of exceptions to the statutory qualifying period (one year) that would otherwise have to be attained in order to avail of the entitlement to claim unfair dismissal. Included in what is a fairly lengthy list of exemptions to the “one year rule” are various statutory qualifications. However the tribunal does note, as it has been invited on behalf of the respondent to do, that nowhere in that list of statutory exemptions is there any mention made of Article 130A of the 1996 Order. In seeking some clarification or explanation as to why that might be the case with a view to reaching a determination as to whether or not to grant the respondent’s application for a review on that ground, the tribunal notes that it was not presented as any further argument on behalf of either party save for the respondent’s side’s assertion that, in effect, 130A is not exempted by the provisions of Article 140, and in opposition to that argument the claimant’s side’s argument that Article 130A, being as it is contained within Part Xl of the 1996 Order in conjunction with Articles 126 and 140, is referring directly to any manner of unfair dismissal, whether arising on foot of one year’s qualifying continuous service or otherwise on foot of any of the statutory exemptions to that qualifying period.
9. In the absence of any further argument on the point, the tribunal gave further consideration to why it might be that there was no express mention made of Article 130A in the list of statutory exemptions contained in Article 140. Some assistance might be provided by the Department for Trade and Industry’s guide for employers that is entitled “Dismissal: fair and unfair: a guide for employers”. Appendix Part 2 — “Dismissal without following statutory dismissal and disciplinary procedures”. This contains the following extract (which is a commentary upon the equivalent under English law of Article 130A of the 1996 Order):-
‘Where statutory dismissal and disciplinary procedures apply and are not treated as having been complied with, it will be unfair to dismiss an employee without their having been followed, if failure to follow them is wholly or mainly the fault of the employer. Employees who wish to complain that they have been unfairly dismissed for this reason must have completed one year’s continuous employment at their effective date of termination”.
In the absence of any other authoritative commentary, cited caselaw, or other observation being contained in the respective written submissions, the tribunal regards this DTI commentary as being of some assistance concerning the omission of any mention of Article 130A in Article 140 (3) of the 1996 Order, as amended.
10. This being the case, the tribunal prefers the respondent’s submission to that of the claimant. Thus the tribunal takes the view that the “one year rule” exemption as provided for by Article 140 of the 1996 Order in respect of a number of statutory heads of claim is not applicable in respect of Article 130A of the 1996 Order. That being the case, the conclusion is that the tribunal’s decision as promulgated cannot stand insofar as it provides for a finding of unfair dismissal grounded upon Article 130A and as a consequence proceeds to make an award of additional compensation upon that basis. The decision therefore must be revoked in part.
11. In the light of this determination on the tribunal’s part, it is unnecessary for the tribunal to deal with the second head of review as submitted on behalf of the respondent.
12. Therefore on foot of Rule 36 (3) of the Rules the tribunal grants the respondent’s application to review the tribunal’s decision as promulgated and the tribunal orders that the decision as originally promulgated shall be revoked in part and shall as a consequence of this be amended. The decision, as amended, is appended to this decision. In all other respects, save as hereby amended, the tribunal’s decision as promulgated shall stand.
Chairman:
Date and place of hearing: 2 July 2007, Belfast
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
APPEAL BY WAY OF CASE STATED FROM A DECISION OF AN INDUSTRIAL TRIBUNAL
BETWEEN:
KIERAN JOSEPH HARKIN
Claimant/Appellant
-and-
KEVIN WATKINS trading as WATKINS SCAFFOLDING
Respondent
Before Kerr LC.J, Campbell U and Girvan LJ
KERR LCJ
Introduction
[1] This is an appeal by way of case stated from a decision of the Industrial Tribunal whereby it held that the appellant was not entitled to be granted an increase of award pursuant to article 17(3)(c) of the Employment (Northern Ireland) Order 2003 because he had less than one year’s continuous service in the employment of the respondent.
Background
[2] The following findings of fact were made by the tribunal: -
“(a) The respondent was the sole proprietor of
a scaffolding business. That business owned and ran a fleet of vehicles
including a seven and a half tonne flatbed lorry (“the lorry”).
(b) The appellant was employed by the respondent as the driver of the lorry and
the appellant’s job was to deliver scaffolding and equipment on site. The
employment commenced at some date not precisely determined but certainly in or
about mid-May of 2005.
(c) The lorry at the material time which concerned the Tribunal, that is to say
in late 2005, bore a goods vehicle certificate which was due to expire on 6
December 2005.
(d) At the material time the claimant experienced certain difficulties with the
lorry:
one of the windscreen washers, on the driver’s side, became inoperative and the
lorry’s horn did not work. Furthermore, there was a crack (or possibly a number
of cracks) on the lorry’s windscreen.
(e) In the early part of December 2005, the appellant orally brought to the
respondent’s attention on at least two occasions the fact that the lorry’s
windscreen was cracked, that the horn did not work, and that the windscreen
washer was defective.
(f) The appellant returned to work after the Christmas vacation period. He
became concerned, on account of documentation seen by him at that time, that
the lorry did not have a current vehicle test certificate. On 11 January 2006,
the appellant spoke with the respondent and stated that he was unwilling to
drive the lorry on account of this and the matters referred to at 10(d) above.
The appellant construed the subsequent conversation with the respondent to the
effect that the respondent had clearly and unambiguously stated to him that if
the appellant was unwilling to drive the lorry in its then current state and
condition there was no work for him. The appellant took this as constituting a
dismissal of him by the respondent.
(g) The Tribunal found that the appellant was dismissed from employment by the
respondent at this time, that is to say 11 January 2006, and at that time the
appellant had less than one year’s continuous service with the respondent.”
Relevant statutory provisions
The Employment Rights (Northern Ireland) Order 1996
[3] Article 126 of this Order deals with the right of an employee not to be unfairly dismissed. It provides: -
“126. — (1) An employee has the right
not to be unfairly dismissed by his employer.
(2) Paragraph (1) has effect subject to the following provisions of this Part
(in particular Articles 140 to 144).”
[4] Various species of unfair dismissal are provided for in the Order. Article 130A makes provision in relation to dismissal as a consequence of the failure of an employer to observe procedures. Paragraph (1) provides: -
“130A. -(1) An employee who is
dismissed shall be regarded for the purposes of this Part as unfairly dismissed
if-
(a) one of the procedures set out in Part I of Schedule 1 to the Employment
(Northern Ireland) Order 2003 (NI 13) (dismissal and disciplinary procedures)
applies in relation to the dismissal,
(b) the procedure has not been completed, and
(c) the non-completion of the procedure is wholly or mainly attributable to
failure by the employer to comply with its requirements.”
[5] Another of the ways in which an employee can be unfairly dismissed is dealt with in article 132. The relevant parts of this provision for the purposes of the present appeal are: -
‘132. —(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—
(c) being an employee at a place where—
(i) there was no [representative of workers on matters of health and safety at
work or member of a safety committee], or
(ii) there was such a representative or safety committee but it was not
reasonably practicable for the employee to raise the matter by those means,
he brought to his employer’s attention, by reasonable means, circumstances
connected with his work which he reasonably believed were harmful or
potentially harmful to health or safety.
…
(2) For the purposes of paragraph (1)(e) whether steps which an employee took
(or proposed to take) were appropriate is to be judged by reference to all the
circumstances including, in particular, his knowledge and the facilities and
advice available to him at the time.
(3) Where the reason (or, if more than one, the principal reason) for the
dismissal of an employee is that specified in paragraph (1)(e), he shall not be
regarded as unfairly dismissed if the employer shows that it was (or would have
been) so negligent for the employee to take the steps which he took (or
proposed to take) that a reasonable employer might have dismissed him for
taking (or proposing to take) them.”
[6]
In order to avail of the right enshrined in article 126, an employee must
normally have been continuously employed for a period of not less than one year
ending with the effective date of termination — article 140 (1). The Order
provides for a number of exceptions to this requirement, however, including
article 140 (3), which is relevant to the appellant’s situation. It provides: -
“(3) Paragraph (1) does not apply if—
…
(c) paragraph (1) of Article 132 (read with paragraphs (2) and (3). of
that Article) applies…”
[7] The appellant’s complaint that he was unfairly dismissed was presented to the industrial tribunal under article 145, paragraph (1) of which provides: -
“A complaint may be presented to an industrial tribunal against an employer by any person that he was unfairly dismissed by the employer.”
[8] The
remedies available to a successful complainant and the orders that the tribunal
may make are dealt with in articles 146 and 147. Article 147 is concerned with
reinstatement and reengagement and is therefore not directly relevant to the
present appeal. Article 146 provides: -
“The remedies: orders and compensation
146.—(1) This Article applies where, on a complaint under Article 145, an industrial tribunal finds that the grounds of the complaint are well-founded.
(2) The tribunal shall—
(a) explain to the complainant what orders may be made under
Article
147 and in what circumstances they may be made, and
(b) ask him whether he wishes the tribunal to make such an order.
(3) If the complainant expresses such a wish,
the tribunal may make an order under Article 147.
(4) If no order is made under Article 147, the tribunal shall make an award of
compensation for unfair dismissal (calculated in accordance with Articles 152
to 162) to be paid by the employer to the employee.”
The Employment (Northern Ireland) Order 2003
[9]
Article 16 (1) of this Order provides that every contract of employment shall
have effect to require the employer and employee to comply, in relation to any
matter to which a statutory procedure applies, with the requirements of that
procedure. (The relevant statutory procedures are discussed in paragraphs [11]
and [12] below).
[10] Article 17 of this Order is concerned with the adjustment of awards
by industrial tribunals. The material provisions are these: -
“17.— (1) This Article applies to proceedings before an industrial tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 by an employee.
…
(3) If, in the case of proceedings to which this Article applies, it appears to
the industrial tribunal that—
(a) the claim to which the proceedings relate concerns a matter to
which one of the
statutory procedures applies,
(b) the statutory procedure was not completed before the proceedings
were begun,
and
(c) the non-completion of the statutory procedure was wholly or
mainly attributable
to failure by the employer to
comply with a requirement of the procedure,
it shall, subject to paragraph (4), increase any award which it makes to the
employee by 10 per cent and may, if it considers it just and equitable in all
the circumstances to do so, increase it by a further amount, but not so as to
make a total increase of more than 50 per cent.”
[11] Among the jurisdictions listed in Schedule 2 are complaints made under article 145 of the 1996 Order. The statutory procedures referred to in article 17 (3) are defined by article 2 of the Order as those set out in Schedule 1. By virtue of article 16 of the 2003 Order, where a statutory procedure applies, every contract of employment has effect to require the employer and employee to comply with the requirements of the procedure. The statutory procedures with which the employer in the present case was required to comply with included setting out in writing the employee’s alleged misconduct which led to the dismissal; what the basis was for thinking at the time of the dismissal that the employee was guilty of the alleged misconduct; and the employee’s right to appeal against dismissal. They also require the employer to send the statement or a copy of it to the employee. If the employee informs the employer of his wish to appeal, the employer must invite him to attend a meeting. It is indisputably clear that none of these steps was taken in the present case.
Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004
[12] Regulation 3 of these regulations applies dismissal and disciplinary procedures including those set out in the preceding paragraph to employment such as the appellant’s. Regulation 4 deals with dismissals to which the dismissal and disciplinary procedures do not apply. It is clear (and it has never been suggested otherwise) that this regulation has no application to the present case.
The tribunal’s decision of 9 May 2007
[13] The
appellant’s complaint was heard by the tribunal on 24 January 2007 and its
original decision was given on 9 May 2007. It was held that the appellant’s
dismissal was for reasons connected with his having raised health and safety
concerns. Accordingly, the tribunal found that the case fell within article
132(1) of the 1996 Order and that the appellant was unfairly dismissed. The
tribunal applied article 140(3) (b) of the Order and determined that the
qualifying period of twelve months’ continuous employment was not required for
a finding of unfair dismissal under article 132(1).
[14] The tribunal went on to find that the respondent had not
engaged in any statutory dismissal procedures and that, therefore, the
appellant’s dismissal was also unfair under article 130A of the 1996 Order.
[15] Finally, it was held that article 17(3) (c) of the 2003 Order
was applicable and, taking account of all the circumstances of the case, the
tribunal concluded that an enhancement of 20% of the compensation should be
awarded. A compensatory award of £8816.16 was made comprising £7246.80 for loss
of income; £100 for loss of statutory rights; and £1469.36, representing the
20% enhancement.
The tribunal’s decision on 18 July 2007
[16] The respondent sought a review of the original decision on the basis that article 130A of the 1996 Order was not engaged because the appellant did not have one year’s continuous
employment with the
respondent and the exemptions to the requirement of a qualifying period of
service were not applicable. Additionally, it was submitted that the question
of possible enhancement of compensation had not been considered at the hearing
and there had been no opportunity to make submissions. The tribunal agreed to
reconsider its decision and the review was conducted on the basis of written
submissions of the parties. On foot of the review the tribunal decided that
article 130A did not feature in the list of statutory exemptions to the
one-year rule and it therefore reversed its earlier finding that the appellant
had been unfairly dismissed pursuant to article 130A. Mr Wolfe, who appeared
for the appellant on the appeal, but who had not appeared before the tribunal,
accepted that the decision to reverse the finding of unfair dismissal under
article 130A was correct for the reasons given by the tribunal in its revised
ruling.
[17] It is clear from the revised ruling that the tribunal considered
that the question of enhancement of the award was uniquely connected to the
finding of unfair dismissal under article 130A for it dealt summarily with that
issue in the following passage from paragraph 10: -
“…the tribunal takes the view that the ‘one year rule’ exemption
as provided for by Article 140 of the 1996 Order in respect of a
number of statutory heads of claim is not applicable in respect of Article 130A
of the 1996 Order. That being the case, the conclusion is that the tribunal’s
decision as promulgated cannot stand insofar as it provides for a finding of
unfair dismissal grounded upon Article 130A and as a consequence proceeds to
make an award of additional compensation upon that basis.”
[18] The tribunal duly deleted the enhanced element of the original award and ordered that the compensatory award should be £7346.80, comprising £7246.80 loss of income and £100 for loss of statutory rights.
The appeal
[19]
Mr Wolfe argued that the revocation of the article 17(3) enhancement failed to
take account of the finding of unfair dismissal under article 132. The view
that the tribunal appeared to have formed that only in unfair dismissal cases
falling under article 130A of the 1996 Order could an increase in award be made
under article 17(3) was erroneous. The decision of the Employment Appeal
Tribunal in Scott-Davies —v- Redgate Medical Services [UK EAT 0273/06]
was authority for the proposition that article 17 of the 2003 Order (and its GB
equivalent) does not give rise to a stand alone claim, but accompanied by a
valid claim of unfair dismissal, afforded a basis for an increase in award.
[20] It was submitted that the application of article 17(3) was not
limited to article I 30A cases and was not limited to those cases in which the
complainant had at least one year’s continuous service. There was nothing in
the language of the 1996 Order or the 2003 Order to suggest that there are any
grounds for excluding from the benefit of article 17(3) those employees who had
established valid unfair dismissal complaints but who had less than one year’s
service.
Discussion
[21] The starting point in the debate whether article 17(3) of the 2003 Order applies to the appellant’s case must begin with the terms of article 17(1). It applies the provisions of the article to proceedings before an industrial tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule 2. One of those jurisdictions is a claim under article 145 of the 1996 Order. This is, of course, precisely the species of claim that the appellant in this case made and succeeded in.
[22] Article
17 of the 2003 Order makes provision for adjustment of awards by the tribunal
where applicable statutory procedures have not been completed, the statutory
procedures being the dispute resolution procedures provided for in Schedule 1
to the 2003 Order. As we have already observed, these procedures were not
complied with in the appellant’s case. There is therefore no inhibition to the
invocation of article 17 in the present circumstances.
[23] By article 17 (3) the tribunal is required to increase any award
which it makes to the employee by 10 per cent where the statutory procedure was
not completed before the proceedings were begun and the non-completion of the
statutory procedure was wholly or mainly attributable to failure by the
employer to comply with a requirement of the procedure. This requirement is
expressed to be subject to article 17 (4) which provides: -
“(4) The duty under paragraph (2) or (3) to make a reduction or increase of 10 per cent does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances.”
[24] In light of the tribunal’s findings about the stance of the employer in the present case, and, indeed, in view of the earlier award of an increase in the compensatory amount, it seems clear that it was satisfied that these conditions were fulfilled. It appears to us, therefore, that this uplift in the compensatory award should have been made and that the tribunal ought then to have considered whether to increase it by a further amount.
Conclusions
[25]
The question for the opinion of this court posed in the case stated was:
“Was the Industrial Tribunal wrong in law to conclude that
the claimant/appellant
was not entitled to be granted an increase of award pursuant to Article 17(3)(c) of
the Employment (Northern Ireland) Order 2003 by reason of the fact that he had less
than
one year’s continuous service in the employment of the respondent?”
[26] We answer that question ‘Yes’, allow the appeal and remit the
matter to the tribunal with a direction that it apply the statutory uplift of
10% provided for in article 17 (3) of the 2003 Order and consider whether to
apply a further increase beyond that percentage.
O’Neil v Wooldridge Ecotech Ltd
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Employment
Appeal Tribunal
Lady Smith, Mr D Evans and Mr A Manners
25 September 2007
Employment
— Dismissal — Unfair dismissal — Employment tribunal finding modified procedure
applying to employee’s case — Tribunal finding employee not unfairly dismissed
— Whether tribunal erring — Employment Act 2002 (Dispute Resolution)
Regulations 2004 (5/2004/752).
Abstract
In the instant case, the tribunal had erred in
its conclusion that the modified procedure for dismissal had applied and that
it had been complied with. It had not been open to the tribunal to find that
they were satisfied, as the modified procedure required them to be, that there
had been a dismissal at the time, or immediately after, the employer had become
aware of the conduct leading to the dismissal. Applying the standard procedure
the dismissal had not been complied with since there had been a dismissal
without the employer having first set out in writing the employee’s alleged
conduct and sending it to him with an invitation to attend a meeting to discuss
the matter.
Digest
The
employer ran a haulage and demolition contractors business. The employee was
employed by the employer as a driver. The employee had an argument with his
line manager. His line manager took the view that the employee had committed an act
of gross insubordination and that it amounted to gross misconduct. The line
manager discussed matter with his colleagues. Having done so, he decided that
it was appropriate to dismiss the employee. It was not, though, until the
following day that he did so. He called the employee into his office and
dismissed him, the employee having received no prior notice. No disciplinary
meeting was held. The employee was advised of his right of appeal in a letter
confirming his dismissal. The employee unsuccessfully appealed. The employee
presented a complaint to the employment tribunal alleging unfair dismissal. The
tribunal found that the modified procedure under the Employment
Act 2002 (Dispute
Resolution) Regulations 2004 (SI 2004/752) applied to the instant case
and that it had been complied with. The employee appealed.
The employee submitted, inter alia, that the tribunal had erred in law in finding that the modified procedure applied and had been complied with.
The appeal would be allowed.
In the circumstances of the case, the tribunal had erred in law in its conclusion that the modified procedure had applied and that it had been complied with. It had not been open to the tribunal to find that they were satisfied, as the modified procedure required them to be, that there had been a dismissal at the time, or immediately after, the employer had become aware of the conduct leading to the dismissal. It had been incumbent on the tribunal to ask if the standard procedure applied and then to ask
whether it had been complied with. On the findings made by the tribunal they could not have found that the standard procedure had been complied with since there had been a dismissal without the employer having first set out in writing the employee’s alleged conduct and sending it to him with an invitation to attend a meeting to discuss the matter. Such a meeting would have been required to take place with the issue of whether or not to dismiss not being decided until such a meeting had run its course.
The case would be remitted to a freshly constituted tribunal for a re-hearing.
British
Home Stores Ltd v Burchell [1978] IRLR 379 considered;
Weddell
v Tipper [1980]
IRLR
96 considered;
Sainsbury’s
Supermarkets Ltd v Hitt [2003] IRLR 23 considered.
Nicholas Frimond, solicitor advocate of Frimond Solicitors for the employee.
The employer appeared by its representative.
Case ref: 115/11IT
IN THE INDUSTRIAL TRIBUNAL IN NORTHERN IRELAND
Between
ISAAC ROBB
Claimant
V
WILLIAM and SUE FARMER T/A THE BAY TREE
Respondent
Skeleton argument on behalf of the Respondent
Automatic unfair dismissal
1 The Claimant cannot pursue an automatic unfair dismissal claim for failure to comply with the statutory dismissal procedures if his period of employment is less than 1 year.
2 Art 130A of the Employment Rights (Northern Ireland) Order 1996 provides that breach of the statutory dismissal and disciplinary procedures under the Employment (NI) Order 2003 gives rise to an automatic unfair dismissal (where the procedures apply and the breach is attributable to the employer). However, authority in this jurisdiction and in the EAT makes clear that one year’s continuity of employment is required to bring such a claim. See Scott-Davies v Redgate Medical Services [2006] UKEAT 0273_06_1108
(11 August 2006); Harkin v Watkins T/A Watkins Scaffolding [2007] NIIT 306_06 (2 July 2007) Industrial Tribunal and Harkin v Watkins (t/a Watkins Scaffolding) [2008] NICA 20 (08 April 2008) Court of Appeal.
3 The Respondent could also rely on Art 130A(2) which provides that the dismissal is not unfair if the Respondent shows it would have dismissed even if the procedure was followed. However, the incontrovertible time point outlined above makes this unnecessary.
. Sex Discrimination
4 The onus is on the Claimant to prove such facts from which the tribunal could conclude, in the absence of adequate explanation, that the Respondent has committed an act of discrimination. If the Claimant does not prove such facts he will fail. See the revised Barton guidance as approved in Wong v Igen [2005] EWCA Civ 142.
5 An act of discrimination requires less favourable treatment compared to a woman in circumstances that are the same or not materially different. See Articles 3 and 7 of the Sex Discrimination (NI) Order 1976. The Claimant identifies Kathryn Masterson as his comparator. She is not a valid comparator. See Shamoon v Chief Constable of the RUC [2003] UKHL 11. Therefore, the Claimant has failed to discharge the necessary burden of proof and his sex discrimination claim must fail.
6 The Claimant does not seek to rely on a hypothetical comparator in circumstances the same or not materially different from his own. He has not brought forward evidence from which the Tribunal could conclude that a female employment in the same or not materially different circumstances would have been treated more favourably. Therefore, he has failed to discharge the burden of proof required even if the Tribunal generously considered a hypothetical comparator contrary to the case the Claimant has run relying on an actual comparator.
Wrongful Dismissal
7 The Respondent adopts the following helpful working definition of wrongful dismissal in Halsbury’s Laws of England (Employment Volume of online version paragraph 780):
“A wrongful dismissal is a
dismissal in breach of the relevant provision in the contract of
employment relating to the expiration of the term for which the employee is
engaged. To entitle the employee to sue for damages, two conditions must
normally be fulfilled, namely:
(1) the employee must have been engaged for a fixed period or for a period terminable by notice and dismissed either before the expiration of that fixed period or without the requisite notice, as the case may be; and
(2) his dismissal must have been wrongful, that is to say without sufficient cause to permit his employer to dismiss him summarily”.
8 The Claimant did not have a written contract or written disciplinary procedures incorporated into his contract. He cannot point to any term of his contract which was breached by his dismissal.
9 The gravity of the behaviour that the Respondent genuinely believed occurred was such to easily get over the threshold of conduct that would warrant summary dismissal. Harvey states at Division DI(9)(c)(6)(d) paragraph 1550:
“Broadly, dismissals for a first offence may be justified in three rather different circumstances:
- where the act of misconduct is so serious (gross misconduct) that dismissal is a reasonable sanction to impose notwithstanding the lack of any history of misconduct;
-where disciplinary rules have made it clear that particular conduct will lead to dismissal; and
— where the employee has made it clear that he is not prepared to alter his attitudes so that a warning would not lead to any improvement.”
10 Even
if he is correct that he should have been suspended pending investigation he
was paid for the period of time that it would have taken for this investigation
to occur prior to dismissal. However, there was no requirement to do this in
his contract in any
event.
11 Therefore, his wrongful dismissal claim must fail on any and all of the above grounds.
Relevance of employer’s genuine belief and reasonable response
12 Although it is abundantly clear in this case that the Respondents genuinely believed the relevant conduct occurred and reacted within the band of reasonable response, this actually has no relevance to the Claimant’s case in law. This would only be relevant to an unfair dismissal claim where the employer sought to prove the dismissal was fair on the grounds of the conduct of the employee as per Art 130(2)(b) of the Employment Rights (NI) Order 1996. The Claimant lacks 1 year’s continuity of employment and therefore this evidence is not relevant to his claim.
Neil Phillips
Bar Library
9 September 2011