Industrial Tribunals Northern Ireland Decisions

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Cite as: [2011] NIIT 00779_11IT, [2011] NIIT 779_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 779/11

CLAIMANT: Alison Shaw

RESPONDENTS: Sandra Phillips and Martin Ronald Phillips

T/A Silver Birch Lodge Private Nursing Home

DECISION

The unanimous decision of the tribunal is that the claimant was not unlawfully discriminated against or unlawfully or unfairly dismissed on the grounds of her pregnancy when she was dismissed from her employment on 18 November 2010.

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Ms T Hughes

Mr B McAnoy

Appearances:

The claimant was represented by Mr R Fee, Barrister-at-Law, instructed by Equality Commission for Northern Ireland.

The respondents were represented by Mr G Ridgeway, of Employment Law Advisory Services.

Background

1. On 3 December 2009, the claimant commenced employment with the respondents as a Domestic Assistant (Cleaner), in their nursing home.

2. The respondents were aware, from a reference which had been provided to them by her previous employer, that the claimant had left her previous employment to have a child.

3. The respondents employed approximately 40 full-time and part-time staff in the nursing home. According to the unchallenged evidence of Mrs Sandra Phillips, six members of staff had previously become pregnant during their employment and those members of staff had faced no difficulty.

4. There was no contractual sick pay scheme and the tribunal was not referred to any contractual maternity pay scheme.

5. The claimant’s employment was terminated in November 2010.

The hearing

6. The hearing was over two days, 28 – 29 September 2011. The claimant gave evidence on her own behalf and called no other witnesses. The respondents’ witnesses were Mrs Sandra Phillips, one of the named respondents and a proprietor of the nursing home, Mrs Gillian Gilmore, the Matron of the nursing home and Mrs Phillips’ daughter, and Mr Andrew Phillips, who worked occasionally in the nursing home doing administrative duties and who heard and determined the claimant’s appeal against her dismissal. Mr Phillips is Mrs Phillips’ son.

The panel met on 30 September 2010 to review their notes, listen as appropriate to the digital recording of the hearing, consider the final submissions of the parties and reach a decision on the claims.

Contentions of the parties

Claimant’s contentions

7. The claimant contended that she had not been formally warned about her work performance at any stage during her employment. On 18 November 2010, Mrs Phillips had criticised her work and, in particular, had criticised her for leaving a Hoover electric lead on the floor of a bedroom corridor in the home, where an elderly resident had had to step over it. The claimant stated that she had been called to a meeting with Mrs Phillips and Mrs Gilmore later on that same day, at the end of her shift. Her evidence was that she had informed Mrs Phillips and Mrs Gilmore that she had found out that day that she was pregnant; that Mrs Gilmore had again criticised her work and criticised her in relation to the incident where the elderly resident had had to step over an electric lead. She stated that Mrs Phillips had then indicated that she was going to seek legal advice. Ms Phillips met the claimant the next morning, ie on 19 November 2010, and dismissed the claimant. The claimant’s position was that the reason for her dismissal had been her pregnancy.

Respondents’ contentions

8. The respondents’ position was that the claimant had been spoken to, but not formally warned, on several occasions during her employment about the standard of her work. On 18 November 2010, the bedroom corridor on the ground floor of the home had been left in a ‘dreadful’ state. The claimant had been directed by Mrs Phillips to hoover the corridor. The claimant had left the electric lead of the Hoover across the corridor and had failed to prevent the elderly resident from stepping over that lead. That incident posed a serious health & safety risk. The respondents’ position was that the resident could have tripped or fallen and that the consequences or any such trip or fall would have been likely to have been serious, both for the resident herself and for the nursing home’s reputation. The respondents’ position was that the claimant had already been dismissed during the meeting on 18 November 2010 before the claimant disclosed to Mrs Phillips and to Mrs Gilmore that she was pregnant. When the claimant disclosed that she was pregnant, Mrs Phillips told the claimant that she wanted to check the legal position with her advisers, ie ELAS, and that she would speak to the claimant again on the next day. On 19 November 2010, the dismissal was confirmed. However, the respondents’ position was that the decision to dismiss the claimant had been made without any knowledge of her pregnancy and that there had been no unlawful discrimination or automatically unfair dismissal as alleged.

Relevant law

9. Article 5A of the Sex Discrimination (Northern Ireland) Order 1976 provides:-

“(1) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if –

(a) At a time in a protected period, and on the ground of the woman's pregnancy, the person treats her less favourably than he would treat her had she not become pregnant …

(3) For the purposes of Paragraph (1) –

(a) In relation to a woman a protected period begins each time she becomes pregnant, and the protected period associated with any particular pregnancy of hers ends in accordance with the following rules … ”

10. Article 131 of the Employment Rights (Northern Ireland) Order 1996 provides that a dismissal shall be an automatically unfair dismissal for the purposes of the 1996 Order if the reason or principal reason for the dismissal is one of a prescribed kind, including pregnancy.

11. The law relating to pregnancy-related dismissals is set out in Harvey on Industrial Relations and Employment Law, Volume 2, Section J. At Paragraph 410, it states:-

“Where dismissal is alleged to be because the pregnant woman has committed some serious misconduct or on grounds of capability or redundancy, then it will have to be established by the employer (who will, in most cases, unless the employee had less than a year’s service [tribunal’s emphasis], bear the burden of proof) that the reason for dismissal is not for pregnancy or a related reason.”

At Paragraph 411 it states:-

“In order for there to be an automatically unfair dismissal on the grounds of pregnancy, not only must the employee be, or have been, pregnant, but the employer must know (or at least suspect) that she is (or was) pregnant. It is not enough for dismissal to be for a pregnancy-related reason, such as poor performance at work, or late coming caused by morning sickness, which the employer genuinely takes to be an issue of performance or attendance.”

12. Paragraph 419 states:-

“What is the position if the employer is unaware that the employee is pregnant at the time of the dismissal? Long-standing direct authority on this point takes the prima facie logical approach that this means that it will not be possible to establish that pregnancy was the reason for dismissal : Del Monte Foods Ltd v Mundon [1980] IRLR 224. In that case the company dismissed the employee for continued absence caused by gastroenteritis. The following day they discovered she was pregnant. Nevertheless they did not change the decision. The EAT held that this could not constitute a dismissal under the then predecessor of ERA 1996 S 99 [the GB equivalent to Article 131].”

13. In relation to the claim under the Sex Discrimination (Northern Ireland) Order 1976, the law provides for a shifting burden of proof. If facts are established on which a reasonable tribunal could properly draw an inference of sex discrimination, the burden of proof passes from the claimant to the respondents.

Issues

14. The tribunal therefore had to determine whether:-

(i) the respondents had unlawfully discriminated against the claimant on the ground of her gender or pregnancy; and

(ii) the respondents had automatically unfairly dismissed the claimant under Article 131 of the 1996 Order.

Relevant findings of fact

15. The claimant was employed at the nursing home for two days per week (Thursday and Friday) and was paid £96.00 per week which she supplemented by the receipt of Tax Credits.

16. Mrs Phillips gave evidence that she had spoken to the claimant on various occasions about the standard of her work. She stated that she had noted six of these occasions, on a contemporaneous basis, on a page which was retained on the claimant’s personnel file. That personnel file and those notes had not been disclosed to the claimant’s representative during the normal discovery exercise. However, the file was in the possession of Mrs Phillips at the tribunal hearing and Mr Andrew Phillips gave evidence that he had read that file and the relevant notes when he had prepared for the claimant’s internal appeal against her dismissal. Mrs Gilmore gave convincing evidence that she had been aware, before the claimant’s dismissal, that the claimant’s standard work had been a concern for her mother, Mrs Phillips. On cross-examination the claimant accepted that two of those notes might have been accurate but the claimant was not in a position to agree the dates to which those notes referred. The tribunal therefore concludes, on the balance of probabilities, that the notes were genuine and that they were contemporaneously compiled by Mrs Phillips in relation to the standard of work of the claimant.

17. The six incidents which had been recorded by Mrs Phillips related to:-

16 September 2010; 1 October 2010; 14 October 2010; 22 October 2010; 4 November 2010; and 11 November 2010

18. The note relating to the incident on 16 September 2010 stated that the claimant had been spoken to about the cleaner (hoover) lead lying in the corridor. The claimant, under cross-examination, indicated that she could not remember the date of this incident but that she might have been spoken to in relation to this matter.

19. The note relating to the incident on 1 October 2010 refers to the claimant being ‘checked’ for the use of colour coded equipment. The note states that her knowledge was poor and vague, the system had been explained to her and she had been told to comply. On cross-examination the claimant denied that she had ever been spoken to in relation to colour coded equipment.

20. The note relating to the incident on 14 October 2010 indicated that the claimant had been spoken to about the use of the ‘Henry’ cleaner. The claimant had pulled it along behind her, instead of using the handle. Mrs Phillips had explained in evidence that this particular type of hoover had had to be repaired frequently because cleaning staff had pulled it along by the hose instead of lifting it properly by the handle attached to the top of the device. On cross-examination, the claimant confirmed that she remembered all the domestics being told not to pull the Henry cleaner along by the hose, but she denied having been spoken to individually about this issue.

21. The note relating to the incident on 22 October 2010 recorded that the claimant had been asked to re-clean the dining room and that she had not been too happy. The claimant accepted, in cross-examination, that she may have been told to clean the dining room and she could not remember being asked to re-clean the dining room but ‘she could have’ been told to do so.

22. The note relating to the incident on 4 November 2010 recorded that the claimant’s work had become very lazy with a ‘don’t care’ attitude. The note stated that the claimant had said she did not like cleaning any more. On cross-examination the claimant stated that this was completely untrue. The claimant stated that she was interested in cleaning and that she enjoyed her job. However, she accepted that she had failed to turn up for essential training for which she would have been paid and which was held on Wednesdays, a day which she normally did not work. She stated that she had simply forgotten these training days and felt that she could not be blamed for this.

23. The note relating to the incident on 11 November 2010 recorded that the claimant had worked downstairs and that her standard of work had been poor. The claimant denied completely that this had happened.

24. The tribunal is satisfied, having heard the evidence from all the witnesses, that the claimant’s work had been criticised by Mrs Phillips as recorded in those notes. It would doubtless have been better if there had been a more formal record of these criticisms kept by the respondents and perhaps a more formal method of monitoring and supervising the claimant’s work, but that did not occur.

25. On 18 November 2010, the claimant was working downstairs in the nursing home. She had first hoovered and cleaned the common areas, ie the reception and the conservatory. She then started to clean and hoover the bedrooms and the bedroom corridor. Mrs Phillips was irritated by the state of the bedroom corridor. She felt that it was ‘dreadful’. Mrs Phillips instructed the claimant to hoover the corridor. The claimant started to do so. Shortly thereafter, Mrs Phillips observed the elderly resident, who walked with the aid of a stick, approach the claimant. The resident had to step over the electric lead running to the hoover.

26. The lead was only extended for a short distance; perhaps three feet behind the hoover. The claimant stated, and the tribunal accepts, that she had her back turned to the resident and did not see or hear her approaching until she was already stepping over the electric lead. It was too late at that stage to avoid the incident. However, the claimant accepted in evidence that incident should not have occurred.

27. At the end of her shift, when the claimant approached the reception area to leave in her timesheet, she was called into a meeting with Mrs Phillips and Mrs Gilmore in Mrs Gilmore’s office.

28. It seems to be common case that during this meeting:-

(i) Mrs Phillips asked the claimant a question – “What is wrong with you – you’re not your usual self?”.

(ii) Mrs Phillips criticised the cleanliness of the corridor.

(iii) Mrs Phillips criticised the claimant for the incident in which the elderly resident had to step over the electric lead raising the obvious issue of risk to injury to the resident and reputational damage to the home.

(iv) Mrs Phillips criticised the claimant’s general standard of work.

29. Beyond those general areas of agreement, the claimant’s version of what happened in that meeting and the respondents’ version of what happened differed significantly.

30. The claimant alleged that the question posed by Mrs Phillips, ie “What is wrong with you etc” was put at the start of the meeting and that the claimant had immediately responded:-

“I’ve just found out I am expecting.”

The claimant’s evidence was that after she had said that and after a further discussion of her work and of the hoover incident, the claimant asked Mrs Phillips if she still had her job. The claimant stated that Mrs Phillips then replied that she would have to contact her legal team. Mrs Phillips later rang her and arranged a further meeting on the next day at which she was dismissed.

The claimant did not say in her evidence that she had suggested to Mrs Phillips that her standard of work or the ‘hoover incident’ had been in any way related to her pregnancy. No evidence was heard to that effect.

31. Mrs Phillips’ version of events was that she had already taken advice from ELAS before calling the claimant into the meeting at the end of her shift on 18 November 2010. The claimant had not responded to any matter put to her in the course of the meeting and Mrs Phillips had told her that her job was no longer there. This, on Mrs Phillips’ evidence, had been a clear dismissal and had been understood as a dismissal. The claimant then said that she had just found out that she was pregnant. Mrs Phillips was concerned at the possible legal implications of this news, given that she had just dismissed the claimant. She told the claimant that she would speak to her legal advisers and speak to her again on the next day. She spoke to her legal advisers and then arranged a meeting with the claimant on the morning of the next day. On 19 November 2010, in that meeting, which was also attended by Mrs Gilmore, she confirmed the dismissal.

32. Mrs Gilmore gave evidence to the tribunal after Mrs Phillips, her mother, had completed her evidence. Mrs Gilmore had had the opportunity to observe her mother giving her evidence to the tribunal. Mrs Gilmore’s evidence was that she had looked at the brief note her mother had compiled of the meeting on 18 November 2010 before giving evidence to the tribunal. However, parts of her evidence to the tribunal concerned matters which were not recorded in the note and it was obvious to the tribunal that Mrs Gilmore was honestly trying to remember exactly what had transpired at the meeting on 18 November 2010 and at the meeting on 19 November 2010. She was sure that the question, ie “What is wrong with you etc”, had been asked but, unlike her mother or the claimant, felt that it might have been asked later on in the meeting rather than early in the meeting. She was sure that the claimant’s standard of work had been a concern for her mother, Mrs Phillips. She confirmed that she had personally spoken to the claimant about work issues but added, without any prompting from either party:-

“But no more than I did with others.”

She confirmed that Mrs Phillips had said to her before the meeting that she had got legal advice from ELAS; that the claimant had said she was pregnant only after she had been dismissed and that Mrs Phillips had told the claimant at that point that she would have to speak to her legal advisers. She confirmed her mother’s account of the meeting on 19 November 2010.

33. The tribunal, as it approached its decision on this point, initially took the view that one side in this particular dispute, ie the dispute in relation to the timing of the disclosure of pregnancy and whether it preceded or followed the actual dismissal, had to be lying. The difference between the two versions appear to be too great to permit a genuine misunderstanding by either party. However, having observed the witnesses and having listened again carefully to the relevant parts of the digital recording of the evidence, the tribunal has concluded, on the balance of probabilities, that no witness was deliberately lying about this point.

34. The tribunal accepts the respondents’ version of events on the balance of probabilities. Mrs Phillips’ evidence was clear and convincing. Mrs Gilmore’s was patently, in the view of the tribunal, honest but in some respects less clear than the evidence of Mrs Phillips. She was prepared to differ and did differ from her mother’s testimony on different points but was clear on the essential elements; ie the timing of the disclosure of pregnancy and the timing of the dismissal. On the other hand, the claimant had clearly been upset during the meeting on 18 November 2010 and, in the opinion of the tribunal, has probably genuinely confused the sequence of events in her own mind and has now convinced herself that she told Mrs Phillips and Mrs Gilmore that she was pregnant before she was dismissed.

35. The claimant appealed against her dismissal and the appeal was heard on 16 December 2010 by Mr Andrew Phillips. The claimant was represented at the appeal hearing by her brother.

36. On 23 December 2010, Mr Phillips wrote to the claimant dismissing her appeal. He concluded that the claimant had been spoken to on several occasions, as evidenced by the claimant’s employment file, by Mrs Phillips. He also concluded that the claimant had told Mrs Phillips that the claimant was pregnant only after she had been dismissed.

Decision

37. There are two issues before the tribunal : firstly, whether there was a pregnancy-related dismissal which would then have been automatically unfair without the need for a 52 week qualifying period of continuous service and, secondly, whether the dismissal had been an act of unlawful sex discrimination.

38. Both these issues resolved one simple question – was the claimant’s dismissal because of, or mainly because of, her pregnancy?

39. In relation to the claim of pregnancy-related dismissal, the tribunal has concluded that the respondents has established the reason for the claimant’s dismissal was conduct, ie the standard of the claimant’s work and the ‘hoover’ incident. The tribunal has already concluded that the dismissal preceded the disclosure of pregnancy.

40. If the claimant had completed 52 weeks continuous service, the tribunal would undoubtedly have concluded that this was an unfair dismissal. The statutory procedures, set out in the Employment (Northern Ireland) Order 2003, were not complied with by the respondents. No written charge had been provided and no notice had been given of the disciplinary interview. No proper representation had been afforded. There had been no formal warnings in relation to the claimant’s standard of work. Furthermore, the nature of the misconduct, including the incident relating to the hoover, would not, on its own, have supported a decision to dismiss the claimant. That would have been outside the band of reasonable responses open to a reasonable employer, according to the commonly understood and objective test in these matters. Mr Ridgeway, on behalf of the respondents, made it plain in his closing submissions that the respondents had been aware of the fact that the claimant had almost, but not quite, completed 52 weeks continuous service and the respondents had been advised accordingly. While it is the legal position that an employee dismissed in these circumstances does not have a right to make a claim of standard unfair dismissal, the actions of the respondents in rushing through the dismissal of the claimant in these circumstances could legitimately be regarded as a somewhat cynical exercise. A better and more reasonable employer would have issued clearer warnings at an earlier stage in relation to the claimant’s standard of work and would not have dismissed the claimant in these circumstances. However, the claimant did not have the necessary 52 weeks period of continuous service and there is no claim of standard unfair dismissal before the tribunal.

41. That said, the tribunal has concluded, on the balance of probabilities, that the claimant had already been dismissed in the course of the meeting on 18 November 2010, following legal advice obtained by Mrs Phillips before either Mrs Phillips or Mrs Gilmore had heard of her pregnancy. There are therefore no grounds on which a tribunal could legitimately draw an inference of unlawful discrimination in these circumstances and no grounds upon which a tribunal could properly conclude that this was an automatically unfair dismissal. The burden of proof therefore does not pass from the claimant to the respondents.

42. The tribunal is strengthened in this decision by the following matters:-

(i) The respondents did not, on the unchallenged evidence of Mrs Phillips, harbour antipathy towards pregnant workers. Mrs Phillips’ evidence was that six other employees had previously become pregnant and that there had been no difficulties. In addition, it was accepted by both parties that Mrs Phillips had, at the time she initially employed the claimant, been aware that she had left her previous employment to have a child and that she was, to use Mr Ridgeway’s phrase, of childbearing age.

(ii) The claimant worked for two days per week as a Part-time Cleaner earning £96.00 per week. The administrative and financial implications of paying statutory maternity pay would have been minimal. It is difficult to see what the motive would have been for the respondents in changing what had previously been their approach to pregnant workers.

(iii) On the claimant’s version of events, Mrs Phillips, who was clearly an individual who sought legal advice as a matter of routine on employment matters and who had retained ELAS to provide that service, would have had to have told her legal advisers, late on 18 November 2010, after the meeting had concluded, that the claimant had disclosed that she was pregnant before a decision had been made to dismiss her. Mrs Phillips would then have had to do something which could only be regarded as incredibly rash, ie after being told the claimant was pregnant and after seeking legal advice, then proceed to dismiss, on 19 November 2010, a pregnant employee. It is much more likely that the sequence of events is as set out by the respondents.

43. The fact that Mrs Phillips, on her version of events, sought legal advice before confirming the pre-existing dismissal does not surprise the tribunal and the tribunal is unable to draw the inference urged upon it by Mr Fee, ie that any employer would have known that there was no need to take further legal advice in these circumstances. Any small employer, having just dismissed an employee and then being told that that employee is pregnant, would, at the very least, have been concerned about their legal position. Mrs Phillips, as indicated above, was clearly an employer who routinely sought legal advice. It is therefore entirely unsurprising that she sought reassurance from her legal advisers before confirming the dismissal. No adverse inference could legitimately be drawn against Mrs Phillips in these circumstances.

44. The claims are therefore dismissed in their entirety.

Vice President:

Date and place of hearing: 29 – 30 September 2011, Belfast

Date decision recorded in register and issued to parties: