Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McGreevy v Judith White Peter White [2011] NIIT 01669_10IT (19 May 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/01669_10IT.html
Cite as: [2011] NIIT 1669_10IT, [2011] NIIT 01669_10IT

[New search] [Printable RTF version] [Help]

THE INDUSTRIAL TRIBUNALS

CASE REF: 1669/10

CLAIMANT: Caroline McGreevy

RESPONDENTS: 1. Judith White

2. Peter White

DECISION

The unanimous decision of the tribunal is that the claimant was unlawfully discriminated against on grounds of her sex and her pregnancy and was unfairly dismissed. The claimant is awarded the sum of £ 8150 compensation for unlawful discrimination and unfair dismissal.

The claimant is awarded the sums of £160.00 for unpaid notice pay and £96.00 for unlawful deduction from wages in respect of respect of ante-natal appointments.

Total compensation awarded is £8406.

Constitution of Tribunal:

Chairman: Mrs Ó Murray

Members: Mrs M Galloway

Mr A Huston

Appearances:

The claimant appeared in person accompanied by her husband for part of the hearing.

The respondents were represented by Mr T Sheridan of Peninsula Business Services.

The claimant’s claims were as follows:

that she was unfairly dismissed for a reason connected to her pregnancy;

that she was discriminated against on grounds of sex and due to her pregnancy;

that the respondents failed to pay Statutory Maternity Pay (SMP);

that the respondents failed to pay the claimant for the time required for three ante-natal appointments;

that she was due one week’s notice pay.

The Issues

2. The issues for the tribunal were as follows:

whether the claimant resigned or was dismissed;

whether the claimant’s contract was conditional upon the funding arrangements in place at the outset of the contract continuing;

whether the claimant’s contract was transferred to an agency and whether this constituted a “service provision change” under TUPE;

whether the claimant was subjected to negative comments by the respondents in relation to her pregnancy, such that it amounted to discrimination;

whether the respondents were liable to pay for 12 hours in respect of three ante-natal appointments;

whether the tribunal had jurisdiction to entertain the claimant for SMP in circumstances where the respondents denied that the claimant was entitled to it from them.

Sources of Evidence

3. The tribunal considered the witness statements and oral evidence of the claimant, her husband and Ms D Gelston, a former colleague of the claimant. The tribunal also heard evidence from Mrs White and Ms Casement of the agency Trackars Biz. The tribunal also had regard to the claim and response forms and the documentation which was produced before and during the hearing.

The Law

4. The Sex Discrimination (Northern Ireland) Order 1976, as amended, (“the SDO”) provides, at Article 5A, that less favourable treatment of a woman on the grounds of the woman’s pregnancy amounts to sex discrimination.

5. Article 6A defines harassment as follows:

“(1) For the purposes of this Order, a person subjects a woman to harassment if –

on the grounds of her sex he engages in unwanted conduct that has the purpose or effect –

Of violating her dignity, or
Creating an intimidating hostile, degrading, humiliating or offensive environment for her,

…

Conduct shall be regarded as have the effect mentioned in paragraph (1) (a) or (b) only if, having regard to all the circumstances, including in particular the perception of the woman, it should reasonably be considered as having that effect”.

6. Article 8(2)(b) prohibits discrimination by way of dismissal or by subjecting a woman to any other detriment.

7. The Employment Rights (Northern Ireland) Order 1996 (ERO), as amended, provides at Articles 83 and 84 that a pregnant employee is entitled to paid time off work for ante-natal appointments. Under Article 85 an employee has the right to complain to an Industrial Tribunal and the tribunal is empowered to order that the employer pay to the employee an amount equal to the remuneration she should have received.

Part IX of ERO governs the maternity leave provisions.

9. Under Article 118 of ERO it is provided that an employee is entitled to one week’s notice if their period of continuous employment was less than two years.

10. Under Article 131 of ERO an employee shall be regarded as unfairly dismissed if the reason or principal, reason for the dismissal is pregnancy.

11. In summary, subjecting a woman to detriment or dismissal where the principal reason is the claimant’s pregnancy is prohibited by both the SDO and ERO, as such acts constitute direct discrimination on grounds of sex, automatic unfair dismissal and are specifically rendered unlawful by provisions enacted to protect pregnant workers.

12. In sex discrimination claims, the burden of proof operates as follows. It is for the claimant to prove facts from which the tribunal could conclude that an act of unlawful discrimination has occurred. If the claimant proves such facts the burden of proof shifts to the employer to show that discrimination was not the reason for the alleged discriminatory treatment.

13. The modified statutory grievance procedure (SGP) applies in this case as the grievance was raised after the dismissal and both sides agreed to use the modified procedure.

14. The respondent raised the issue of jurisdiction in relation to the SMP claim. We were referred to Harvey, Division J at paragraphs 60-70 and 96-97.

15. At paragraph 97, Harvey cites the EAT decision of Taylor Gordon and Company Ltd v Timmons 2004 IRLR 180. In that case, the EAT concluded that where the employer disputed liability to pay SSP, the issue of liability could only be determined by the Inland Revenue which is now HMRC. Harvey states:

“The reasoning applies equally to SMP for which the adjudication procedures are essentially the same, and it therefore appears that tribunals only have jurisdiction over claims in respect of unpaid, or underpaid, SSP if the liability to pay is not disputed. In other cases the aggrieved employee must use the adjudication machinery described below”.

The adjudication machinery referred to concerns an application to HMRC for a decision.

16. The Northern Ireland equivalent of the social security legislation cited in Harvey is as follows: The Social Security (NI) Order 1986 and The Statutory Sick Pay and Statutory Maternity Pay (Decisions) Regulations (NI) 1999.

17. As the claimant was not employed for more than one year, she is not entitled to claim unfair dismissal under ordinary principles. The claimant is entitled however, to claim automatic unfair dismissal on the basis that her allegation is that she was dismissed for a reason connected to her pregnancy. In a pregnancy unfair dismissal case where the claimant has less than one year’s service, the position on the burden of proof is potentially less clear-cut as set out in Harvey at paragraph 418 and 418.01. We agree with Harvey’s analysis that the Burden of Proof Directive applies to such dismissals and the burden of proof therefore operates as set out at paragraph 12 above.

18. Mr Sheridan referred to The Service Provision Change (Protection of Employment) Regulations (NI) 2006 (“the Regulations”) which are part of the TUPE regime. Mr Sheridan sought to characterise the claimant’s change in employment circumstances at the beginning of April 2010 as a service provision change.

19. A service provision change is defined at Regulation 3(1)(b) and the definition which appears to be invoked in this case is that 3(1)(b)(ii). Essentially this provides that, where an activity is carried out by a contractor on a client’s behalf and those activities are then carried out by another person namely a subsequent contractor, on the client’s behalf, this constitutes a service provision change governed by the TUPE Regulations. If applicable in this case, the claimant’s contract would have transferred to Trackars Biz when the funding arrangements changed.

Facts and Conclusions

20. Having considered all the evidence both oral and documentary the Tribunal found the following facts proven on a balance of probabilities and reached the following conclusions having applied the law to the facts founds.

General

We found Mrs White’s evidence in general to be contradictory and unreliable in several respects. Mrs White also changed her statement and changed her evidence in several important respects (for example by withdrawing several references in her statement to the claimant’s alleged rudeness and poor attitude) and this tainted her reliability and creditibility. In contrast the claimant was consistent in her account of the adverse treatment and on other key evidence. For this reason, where there was a conflict in evidence we preferred the evidence of the claimant.

22. We find that there was no breach of the SGP by either side. We therefore find as a fact that the SGP was complied with.

Entitlement to SMP

23. The Social Security system in Northern Ireland mirrors that in Great Britain and HMRC has UK-wide coverage. We therefore accept Harvey’s analysis that, where entitlement to SMP is an issue, the claimant’s remedy is to make application to HMRC for entitlement to be established. We accept the reasoning in the EAT decision of Timmons that the Tribunal therefore does not have jurisdiction is this type of case and we therefore dismiss the claimant’s claim for SMP.

Care Arrangements

24. The respondents are the parents of an adult daughter with physical and mental disabilities which necessitate her receiving care and assistance at home.

25. Due to a reduction in the level of support in residential care by the South Eastern Health and Social Care Trust (“the Trust”), and its effect on the child’s welfare, the respondents felt that they had no option but to bring their daughter home. This led to them adopting the role of employers in order to avail of part of the care-funding support.

26. A care assistant was provided by the relevant Trust through an agency named Trackars Biz. The claimant was one of the carers assigned by Trackars Biz to cover the care hours funded by the Trust. The claimant had been with the respondents from the beginning of February 2009 as an agency worker placed by Trackars Biz working a 6.5 hour shift per day in the afternoon and early evening. It was through this contact that the respondents asked the claimant to work privately for them.

27. The claimant therefore attended the respondent’s home in two capacities: firstly, in the afternoon and the evening as an agency worker provided by Trackars Biz on behalf of the Trust and, secondly, in the mornings as a privately-engaged employee employed by the respondents.

Contract Terms

28. When the claimant was first engaged by the respondents privately, she was aware, and accepted, that she was being taken on to cover the maternity leave of CS who left on maternity leave on 10 July 2009 and was due to return at the beginning of April 2010. It was not part of the contract that it was conditional on the funding continuing by way of direct payments.

29. The claimant started her employment with the respondent on 2 July 2009 and was engaged to work 4 hours per day making 20 hours per week at a rate of £8.00 per hour net.

30. The respondents funded their contract with the claimant by using the £400.00 per week provided to the family under the Direct Payments Scheme to meet their daughter’s needs. The £400.00 per week was paid by the Trust to the respondents. The Trust directed the respondents to the Centre of Independent Living (CIL) which was an organisation which calculated the wages and deductions on the respondents’ behalf based on information supplied by the respondents. It was the respondents who actually paid the claimant each week. We reject any suggestion that the contract was with the respondents’ daughter. Both respondents were therefore liable for the claimant’s claims to the tribunal.

Service Provision Change

31. We do not accept that the circumstances in this case amounted to a Service Provision Change. In order to come within that definition the respondents would have been contractors engaged by their daughter. The respondents, in turn, would have been employers of the claimant who then transferred to a subsequent contractor namely Trackars Biz. Our view is that this strains the wording of the Regulations to breaking point. The fact is the respondents as a family received funding from the Trust in order to fund care for their daughter and they engaged the claimant in a private contract in order to do so.

Adverse Comments

32. It appears to have been agreed by the parties that the claimant was an excellent carer who got on very well with the respondents’ daughter. There were no problems with her work and the respondents were very pleased with her.

33. Things changed, however, when the claimant told Mrs White that she was undergoing IVF treatment. By her own admission, Mrs White “blew a fuse” when she was informed of this by the claimant. Mrs White attributed her adverse reaction to this news, to her “motherly concern” for the claimant’s health which appears to have stemmed from Mrs White’s negative view of IVF, its suitability for the C and Mrs White’s perception of its risks to health.

34. Mrs White expressed in emphatic terms to us the full nature and scope of her adverse and negative views of IVF. In the context of the evidence as a whole and having assessed Mrs White’s demeanour, we do not accept that Mrs White ceased expressing her negative views following the claimant’s announcement of her pregnancy. We accept the claimant’s account of what happened on that day as follows.

35. The claimant told Mrs White that she was pregnant at the end of December 2009/beginning of January 2010. The claimant told Mrs White that she was expecting twins and received congratulations accompanied by negative comments about IVF and a comment as follows: “I don’t know why you would want to have a baby and put yourselves through this if it turns out like her”. This made reference to the respondents’ disabled daughter.

36. We accept the claimant’s evidence that both of the respondents made negative comments about her being pregnant and about her being entitled to paid leave and paid time off for ante-natal appointments. We accept that comments such as: “Pregnant women just take full advantage of employers, if you decide to go off and have a baby I don’t see why we should be paying for it” ; and: “I can’t understand why I have to pay for a woman to go out and have a baby or why I should have to fund this”; and: “I think you are sick and very silly to get pregnant”. We accept that negative comments in this vein were made on an ongoing basis both before and after the claimant announced that she was pregnant.

37. We find that the claimant was understandably and justifiably very upset and distressed by these comments and by the ongoing nature of negative comments made to her in connection with her pregnancy and her impending absence. The claimant was driven to undergo IVF due to difficulties, was delighted that she was expecting twins and was understandably extremely distressed and upset by the respondents’ reaction to her good news and the claimant’s distress was apparent during the hearing when Mrs White expressed her views on IVF to us.

38. We accept the claimant’s evidence that her continuing distress overshadowed her pregnancy and added unnecessarily to the normal anxiety felt by an expectant mother.

39. The claimant did not give the MAT1 form (that is the form which states the estimated week of confinement) to the respondents as she had given it to Trackars Biz her other employer. The claimant, however, informed the respondents that her estimated week of confinement (EWC) was 3 August 2010 but she indicated that, as she was expecting twins, she had been told that the children’s birth would likely occur in July 2010.

Ante-natal appointments

The claimant’s contractual hours were varied by agreement so that when she attended 3 of her ante-natal appointments she did so during working hours but she had 4 hours’ pay deducted each time. Mrs White in evidence did not deny the claimant’s evidence on the 12 hours’ deduction.

41. We therefore find that the three ante-natal appointments for which she was not paid are due to be paid by the respondents. We accept the claimant’s evidence that she showed the appointment cards to Mrs White to show the dates and times of the appointments. We therefore award 12 hours’ pay at £8.00 per hour net making a total of £96.00.

Date of Ending of Contract

42. Both sides gave conflicting evidence about the claimant’s last day at work with the respondents on her private contract. Having considered all the evidence we find that the claimant’s last day of her contract was 2 April 2010 as this is the date inserted on the P45 and it is the date relied upon by the claimant in her claim form. In addition it is accepted by both sides that the cheque dated 8 April 2010 given by Mrs White to the claimant was for the previous week’s work and Mrs White accepted that at times payment was made late.

43. CS returned from maternity leave on 5 April 2010.

44. The claimant’s last day working as an agency worker in the White’s home was 20 April 2010. The claimant had been scheduled to cover shifts before and after that date but she did not to do so partly due to illness which required her to be in and out of hospital with infections.

45. The claimant’s evidence was that she could also not face returning to the White’s home because of the toll that the stress was taking on her and she therefore decided that she could not go back after 20 April 2010 but she did a few hours work in the office of Trackars Biz. The claimant did not quantify the specific number of hours lost but we accept that she lost some income in the period after the contract with the Whites ended and that some of this associated loss was as a consequence of their ending of the contract.

Reasons for Ending Contract

46. The two sides gave different accounts of the reasons for the ending of the contract. Both sides agree that the claimant became Trackars Biz’s responsibility in early April 2010. The respondents’ case was that the claimant’s contract moved with the funding or that the claimant resigned. The claimant said that she was dismissed.

47. Essentially the respondents’ case was that the Trust unilaterally and without specific reference to them, decided firstly, to end the direct payments, and secondly, it decided that the claimant would transfer to Trackars Biz and that her hours would be provided through that agency. This meant that the respondents no longer had responsibility for her as she had transferred to Trackars Biz. We do not accept Mrs White’s evidence as a plausible account as we do not accept that so much happened without the respondents being aware of it and involved in it.

48. The respondents also confirmed that on 5 April 2010 CS returned to them but, despite the change in funding, she did not transfer with the hours to Trackars Biz. CS continued to work for the respondents privately for several hours per week.

The claimant’s case was that the respondents, motivated by her pregnancy, decided to engineer a transfer to Trackars Biz so that they divested themselves of responsibility for her and the payment of SMP to her.

Against a background of, firstly, adverse comments being made in connection with the claimant’s pregnancy and her imminent maternity leave, and, secondly, the animosity and hostility shown by the respondents to the claimant’s ante-natal appointments and her rights to statutory maternity pay, we draw the inference that the claimant’s dismissal was connected to her pregnancy and imminent maternity leave. We do not accept that any change in the funding arrangements was the primary motivating factor in the change of the claimant’s contractual circumstances with the respondents. We are not satisfied that the reason for dismissal was because of CS’s return from maternity leave because Mrs White made it clear that she expected the claimant to continue working for her after the claimant’s return, albeit paid by Trackars Biz. We were given no explanation for CS continuing to be employed privately when the claimant was not. We do not accept that these arrangements were changed without the respondents being aware of it. We find that, in the context of all the evidence, the claimant’s contract was brought to an end by the respondents for a reason connected to her pregnancy and thus amounted to sex discrimination and automatic unfair dismissal.

Both sides agree that the relationship between them had become difficult and Mrs Casement was aware that the relationship had broken down with both respondents. Mrs Casement confirmed that the claimant told her that she felt the relationship had broken down with the Whites and that Mr White in particular had shown animosity that the claimant was pregnant to the extent that the claimant had to leave the house on one occasion as she was frightened by his aggression towards her.

The relationship broke down because of the animosity shown by both the respondents to claimant’s pregnancy and her related entitlements. The claimant’s pregnancy therefore permeated the adverse dealings with the respondents which culminated in her dismissal. No other reason was put forward by the respondents for the deterioration in the relationship between them and the claimant particularly as Mrs White changed her statement to delete references to the claimant being rude and difficult when dealing with them. We are satisfied that both respondents showed animosity towards the claimant in relation to her pregnancy and this led to her not being paid for ante-natal appointments when she was entitled to be paid for them. We note that, despite being present in tribunal each day, Mr White was not called to give evidence to rebut the claimant’s allegations about his behaviour. We infer that the respondents’ animosity about the claimant’s pregnancy and maternity leave was the primary factor in the dismissal. The respondents appear to have wanted to avoid the inconvenience of dealing with another pregnant employee’s maternity leave and maternity pay.

We find that the claimant was dismissed without notice. Under ERO she was entitled to one week’s notice and we therefore award the sum of £160.00 being one week’s net pay.

Maternity Leave

54. The claimant began her maternity leave on 8 June 2010 which is the date the statutory maternity pay (SMP) was first paid by Trackars Biz. SMP ended on 7 March 2011 and the claimant started to receive SSP from 8 March 2011 and this was ongoing at the date of the hearing. The claimant’s most recent sick line was due to expire on 2 May 2011.

Summary

55. We have a degree of sympathy with the respondents in the position they were in, whereby they had to care for their disabled daughter at home because she was no longer in residential care because they were unhappy with the reduction in services. The subsequent funding arrangements meant that they were put in the position of being employers with all the obligations and duties that that entailed. We appreciate that the respondents, as retired individuals with health problems of their own, had their hands full with a disabled daughter whose needs and behaviour could be challenging. We also appreciate that Mrs White had sincerely-held strong beliefs about health issues and the impact of IVF on health. We can also appreciate the respondents’ desire to ensure that their daughter was not unsettled or adversely affected by too many changes of carer.

Whilst we can appreciate the stressful factors in the respondents’ lives and can regard them as some form of explanation for the events, they do not excuse the behaviour displayed towards the claimant. Even if the adverse comments from Mrs White were motivated by “motherly concerns” this does not detract from the adverse effect on the claimant and her distress which was a reasonable and understandable reaction to them. The case law is clear that a benign motive for discrimination has no bearing on whether or not adverse behaviour amounts to discrimination. We note that we received no explanation for Mr White’s adverse behaviour. The claimant should not have had to endure adverse comments and aggressive behaviour due to her pregnancy and impending maternity leave.

We are satisfied that the claimant was subjected to sex discrimination relating to her pregnancy by the adverse comments made to her and by her dismissal.

Compensation

58. The claimant is entitled to compensation for the harassment caused by the adverse comments made both before and after her announcement of her pregnancy and for the discriminatory dismissal. In assessing compensation, we have taken account of the following factors:

(1) the clear distress suffered by the claimant;

(2) that the claimant’s pregnancy was overshadowed by the adverse comments and this was particularly marked due to the difficulties she had had in becoming pregnant;

(3) that this was not a one-off event but a continuous exposure, albeit over a relatively short period, to unacceptable comments;

(4) that the contract was due to end in April anyway on the return of CS although the evidence was that Mrs White expected her to do some hours even after CS’s return;

(5) that, whilst the claimant did some hours in the Trackars Biz office between 2 April and June 2010, they did not make up for the hours lost with the respondents and that work was paid a lower hourly rate than the work for the respondents. We find that part of that loss was as a consequence of the discriminatory dismissal. The number of lost hours were not specified and the financial loss not quantified but we are satisfied that this loss was a source of distress to the claimant and have reflected that in the award for injury to feelings;

(6) that there was no evidence of any medical effects on the claimant due to the discriminatory treatment.

59. Whilst Mr Sheridan alluded in general terms to the respondents’ ability to pay, he declined to make any submissions on the relevance or otherwise of that as a factor. In accordance with the authorities we have specifically not taken account of the respondents’ ability to pay but have concentrated on the effect on the claimant and the factors outlined above.

60. Taking account of all the factors we assess compensation to fall within the middle Vento scale and award £7500 for injury to feelings.

61. Interest @ 8% per annum is awarded from the date of discrimination 2 April 2010 to the date of calculation 2 May 2011 as follows: £7500 x 8% pa x 13 months = £650.

62. As we have found in favour of the claimant in relation to automatic unfair dismissal, she would be entitled to the basic award. As the claimant was employed for under one year the basic award amounts to zero. The compensatory award for unfair dismissal is included in the calculation of the compensatory award for unlawful discrimination.

63. The claimant is not entitled to any loss of wages during her maternity leave because she received what she should have received other than the alleged reduced rate in SMP for the first 6 weeks due to the earnings with the respondent not being taken into account. The SMP claim is outside the jurisdiction of the tribunal.

64. The claimant is currently on sick leave and there was no suggestion that that sick leave was related to the conduct by the respondents. Mrs Casement made it clear that when the claimant is fit to return to work she will be allocated as many hours as she wishes to work. We therefore find that there is no claim for future loss.

Total compensation is as follows:

Injury to feelings £7500

Interest £ 650

Notice pay £ 160

Pay for antenatal appointments £ 96

_____

Total £8406

65. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 28, 29, 31 March 2011 at Belfast.

Date decision recorded in register and issued to parties: