Industrial Tribunals Northern Ireland Decisions

 

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 7550/09

 

 

 

CLAIMANT:                          Janete Teixeira

 

 

RESPONDENT:                  D2 Trading Limited (in Administration)

 

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant's claims of unlawful race discrimination and age discrimination are not well-founded and these claims are dismissed by the tribunal, without further order.  The tribunal finds that the claimant was unfairly dismissed by the respondent and the tribunal orders the respondent to pay to the claimant compensation in the total sum of £803.40.

 

 

Constitution of Tribunal:

 

Chairman:                                        Mr James V Leonard

 

Members:                                         Mr Wilfred Mitchell

                                                            Mr James Welsh

 

 

Appearances:

 

The claimant was represented by Mr P Begley, Solicitor, of G R Ingram and Company, Solicitors.

 

The respondent did not appear and was not represented in the matter.

 

 

REASONS

 

The claimant’s claims

 

1.         In her claim to the tribunal dated 3 December 2009 and received by the Office of Tribunals on that date, the claimant claimed unfair dismissal, breach of contract, race discrimination, age discrimination and part-time working discrimination.  The claimant’s claim was accepted in part only; that part of the claim relating to part-time working and breach of contract was rejected.   Accordingly the tribunal was obliged to address three complaints, these respectively being of unfair dismissal, race discrimination and age discrimination.

 

2.         The respondent was a company of limited liability, which company was in administration at the time of the proceedings. There was no response to the claim.

 

THE BACKGROUND TO THE MATTER AND THE ISSUES TO BE DETERMINED

 

3.                  The tribunal feels that it is appropriate to set forth some details concerning the history of the matter and progression of this claim.  The case was originally listed for hearing on 20 May 2010. Mr Begley, solicitor, appeared on behalf of the claimant before a tribunal, differently constituted to this tribunal, on that date but the claimant did not herself appear.  The Chairman directed the claimant’s solicitor to endeavour to contact the claimant regarding her attendance and the matter was adjourned to the following day, 21 May. The solicitor was apparently unable to contact the claimant. The Chairman then directed that the case which had been adjourned to 21 May should be postponed and that the solicitor should contact the claimant and arrange suitable dates for a listing of the case and should inform the Office of Tribunals accordingly. 

 

4.                  The matter was then relisted by agreement for hearing before this tribunal, being a differently constituted tribunal to the first of tribunal, on 30 September 2010 and 1 October 2010, due notice of hearing in writing having been dispatched to the claimant and to her representative.  The claimant and her representative, Mr Begley, attended the hearing on 30 September 2010.  At the outset of the hearing there were discussions regarding the nature of the evidence that was to be received by the tribunal.  The tribunal noted copy of a letter dated 15 March 2010 from James B Stephen, Joint Administrator of the respondent company, confirming that Mr Stephen and Dermot Power had been appointed Joint Administrators with effect from 30 December 2009.  The Administrator in his letter indicated that he did not intend to become involved in the matter and would not be sending a representative to the hearing under the circumstances. 

 

5.                  The tribunal then examined various documents contained in a bundle of documents produced by the claimant’s representative.  The tribunal noted that some documents which ought, in the normal course of things, to be present in a claim of this nature and introduced into evidence by the claimant, where absent.  For example absent were a copy of any statement of terms and conditions of employment (for the oral evidence was that there were such written terms in this case) and a copy of any letter confirming the fact of the dismissal and setting forth any reasons for the dismissal.  It appears that the claimant's representative had taken no steps formally to obtain documentation from the respondent or from the Administrators. In the exercise of the tribunal’s inquisitorial function regarding clarification of the issues, the tribunal directed that enquiries should be made from the office of the Administrators in order to ascertain if certain key documents indeed did or did not exist which might otherwise have been produced to the tribunal and which might have served to clarify the facts.  The tribunal was of the view that there might have been some difficulty in reaching an informed and a proper adjudication upon the issues in the absence of documents which might have existed but which had not been produced.  For expediency and in pursuit of the overriding objective, the tribunal then proceeded to hear the evidence in chief of the claimant, which evidence in chief concluded by the end of the first day of hearing. 

 

6.                  At this point in proceedings, the tribunal made clear to the claimant and to her representative that the tribunal might require to ask the claimant certain questions to enable some clarification of matters on the second day of the hearing.  In order to facilitate the claimant in domestic arrangements, the tribunal agreed to sit at 9.00 am on the following day, 1 October 2010.  On that latter date, at 9.00 am there was no appearance by or on behalf of the claimant, nor was any explanation afforded for the non-appearance. The tribunal eventually sat at 10.40 am at which time, whilst the claimant herself did not appear, her representative, Mr Begley, was in attendance before the tribunal.  The claimant’s representative stated that he had received a message that the claimant was unable to attend due to the illness of a child.

 

7.                  The tribunal indicated that it was still awaiting receipt of requested documents that day from the Administrators. In view of the absence of the claimant, the tribunal made a peremptory adjournment order in respect of the matter to 11 November 2010.  The Office of Tribunals then, a short time later, received documentation from the Office of the Administrators. This documentation was provided forthwith in copy form to the claimant’s representative. The claimant’s representative, in response, furnished written submissions to the tribunal and requested that the claimant be afforded a further opportunity to give evidence dealing with the content of the documents which had been provided to the tribunal by the Administrators. The tribunal felt that was quite proper to grant that request and anticipated that the claimant would appear before the tribunal on 11 November 2010.

 

8.                  At the commencement of the hearing listed on 11 November 2010, Mr Begley again appeared on behalf of the claimant. The claimant herself did not appear nor was Mr Begley able to give any account or reason as to why the claimant was not in attendance. The hearing then proceeded in the absence of the claimant.  The claimant's representative produced to the tribunal written submissions in regard to the matter. As there was no further evidence available, the tribunal then rose to determine the matter.

 

9.                  In the light of such evidence as was available to the tribunal and the submissions received, the tribunal was tasked with reaching a determination of the claimant’s complaints of unfair dismissal and of race discrimination and age discrimination.

 

THE TRIBUNAL’S FINDINGS OF FACT

 

10.    The tribunal determined upon the balance of probabilities the following facts, material to the issues:-

 

(a)          Initially, the tribunal would wish to record the observation that the evidence in the case was generally unsatisfactory and in parts insufficient to enable the tribunal readily to draw precise conclusions of fact in respect of some important issues. The claimant had  pursued a claim for race discrimination. At no stage was there any clear and cogent evidence adduced concerning the claimant’s race, nationality or ethnic or national origins. 

 

(b)          Whilst there was no oral evidence specifically in regard to this, the papers disclosed a reference to “race” and  “skin colour”, and being a “foreign national”, concerning the race discrimination claim. Certainly at no stage in the giving of her evidence to the tribunal did the claimant give clear testimony to the tribunal so as to clarify issues concerning the identity of her race, her ethnicity or her nationality or national origins. 

 

(c)          On account of her failure to attend the tribunal hearing on the two subsequent days of listed hearing afforded to her to do so, the tribunal was effectively denied any opportunity to seek clarification and confirmation in regard to some essential issues which were fundamental to the claimant’s claim for race discrimination. This omission denied to the tribunal the opportunity to make essential findings of fact bearing upon certain fundamental legal issues that required to be determined in respect of this element of the claimant’s case. 

 

(d)          In respect of the claimant’s claim for age discrimination, the claimant stated her date of birth in her claim form to be 26 July 1979.  That date was not confirmed to the tribunal by the claimant in her oral testimony. However, in the absence of any challenge in respect of that date, the tribunal finds that the claimant’s age at the date of the material events alleged in this claim, that is to say 16 July 2009, was 29 years.

 

(e)          The claimant was employed by the respondent company as a sales assistant on what was known as a “zero hours” contract.  Whilst written terms and conditions of employment appear to have existed, regrettably no evidence was put forward in respect of these terms, save for a small extract recited in a letter.  Again, regarding the unsatisfactory nature of the evidence, the tribunal would make the observation that it is unfortunate that a document which the tribunal regards as very probably readily available to the claimant was not produced to the tribunal in evidence.  The claimant worked a variable number of hours per week. Regrettably, there was no evidence as to the precise date of commencement of employment, the claimant asserting in her oral evidence that she had worked approximately 20 months at the time of the employment coming to an end.  From examining some of the documentary evidence adduced in respect of wages details, the tribunal makes an assessment of the employment start date probably as November 2007.

 

(f)            The claimant’s employment was at the respondent’s retail shop premises (for convenience hereinafter referred to as “the store”). The store was located in the High Street Mall, Portadown, Co Armagh. The store employed a number of employees in addition to the claimant who were on “zero hours” contracts.  Whilst the claimant contended that she normally worked between 20 and 25 hours per week, prior to a claimed reduction in hours, the claimant produced in evidence five monthly wages slips covering only the period from June 2008 to January 2009 (these being the respective months of June, August, October and November 2008 and January 2009). The evidence contained in this documentation demonstrates the number of hours per week worked by the claimant, varying from approximately 11.5 hours to approximately 19.5 hours each week, in the course of those five months in respect of which the documentation was available.  In this respect, the tribunal regrettably found the claimant’s corresponding oral evidence to be lacking in consistency and credibility. Comparing the oral and documentary evidence, the tribunal’s assessment was that the claimant was endeavouring to exaggerate the number of hours routinely worked by her each week.  In her testimony she stated that she customarily worked between 20 and 25 hours per week. That assertion certainly was not borne out by the documentary evidence. 

 

(g)          The tribunal noted some additional material provided by the respondent to the tribunal that concerned wages details covering the period from January 2009 to July 2009. This information in regard to a period of 31 weeks to July 2009, demonstrates that the claimant’s working hours, in some weeks, increased beyond the hours worked in the earlier period, to January 2009. Out of the 31 weeks there were ten weeks with over 20 hours worked, the records disclosing an average of 14.8 hours per week worked over the period in question, January 2009 to July 2009. 

 

(h)          The claimant’s contention in her direct evidence was that a pattern of discrimination and less favourable treatment commenced when a new manager took over the store in January 2009.  This manager was William Gillespie (also erroneously named by the claimant as “William Jessop”).  The wages records in 2008 and in 2009 do show a small reduction in hours worked by the claimant as between the two years, with approximately 17 hours average per week being worked over the five months (in respect of which records were available from the foregoing wages slips) in 2008, that average figure reducing, as mentioned above, to an average of about 14.8 hours per week in 2009, over the 31 week period in question.  It is difficult for the tribunal to make a more precise finding in the absence of comprehensive and clear evidence being available concerning the working pattern over of the respective periods under examination.

 

(i)            Having noted the foregoing, and being entirely conscious of the fact that the tribunal had been appraised of a very partial picture only, the documentary evidence certainly does not bear out any very substantial and consistent reduction in the claimant’s working hours, which the claimant in her oral evidence had endeavoured to persuade the tribunal to be the case, once William Gillespie took over as store manager in January 2009.  The tribunal therefore did not find the claimant’s evidence to be consistent with the documentary evidence nor in any manner credible in that regard.

 

(j)             In her evidence the claimant named as a comparator for the purposes of her claim of unlawful discrimination (both race and age) a fellow employee at the store, “Alan” McCready (whose true name is believed to be probably Robert McCready, but nonetheless referred to hereafter as Alan McCready).  The claimant’s evidence was that William Gillespie favoured Alan McCready in comparison to her by affording to him a considerable number of hours in addition to those afforded to the claimant.  The claimant’s evidence was that Alan McCready routinely worked 26-30 hours per week and that she got far fewer hours. 

 

(k)          Examining the respondent’s records in respect of Alan McCready’s hours worked (this being the only evidence available to the tribunal) it seems that over the 31 week period mentioned above in regard to 2009, Alan McCready’s average was approximately 17.5 hours per week in contrast to the approximately 14.8 hours worked by the claimant. Thus there was evidence of a degree of disparity in the average, but, once again, in the absence of full and comprehensive details enabling a full, fair and proper comparison to be made, the tribunal is somewhat circumspect regarding this evidence, nor indeed is any disparity substantial on the strength of this evidence. Certainly it does not in any manner coincide with the case endeavoured to be portrayed by the claimant in her oral evidence. Thus, in summary, any evidence does not support the very considerable and substantial disparity which the claimant had asserted in her oral testimony. 

 

(l)             Accordingly, the tribunal was compelled to view the claimant’s evidence with some circumspection. The tribunal was thus drawn to the conclusion that the claimant intentionally exaggerated her evidence in respect of this aspect of the matter in an endeavour to persuade the tribunal of a much greater disparity in working hours afforded by William Gillespie as shop manager between the claimant and her comparator, Alan McCready. 

 

(m)        In general, the quality of the evidence adduced by the claimant for the purposes of conducting the statutory comparison in respect of alleged unlawful discrimination was unsatisfactory.  The tribunal had considerable difficulty in assessing any evidence in this regard for the purposes of establishing any comparison which the claimant was endeavouring to assert in respect of her claims of unlawful discrimination.

 

(n)          Whilst the claimant asserted Alan McCready to be her comparator for statutory purposes, there was no evidence adduced concerning Alan   McCready’s age, race, nationality or ethnic or national origins or skin colour.  The tribunal will return to that matter further below.

 

(o)          The claimant’s evidence was that her manager, William Gillespie, took over management of the store in early 2009.  She alleged that William Gillespie had a racist “mindset”, which included the perception that foreign nationals were more likely to steal from the store, and that staff were directed by William Gillespie to pay particular attention to foreign nationals on that account.  The claimant’s oral testimony in chief to the tribunal in this respect was quite brief and lacking in specific detail. As mentioned, the tribunal desired to endeavour to clarify that evidence by questioning the claimant and by this means obtaining specific and pertinent detail to assist with the tribunal's proper determination of the issues. The tribunal was regrettably denied that opportunity when the claimant did not appear further at the tribunal hearing notwithstanding the facility afforded to her to do so.

 

(p)          As the tribunal harboured concerns regarding the general credibility and reliability of the claimant’s evidence, the tribunal felt compelled to treat the claimant’s evidence with circumspection.  Thus the tribunal took the view that any such evidence was better tested against other potential sources of evidence available.  Denied the opportunity of direct clarification of the claimant’s evidence, the tribunal examined documentation produced by the respondent, some of which related to an investigation conducted by the respondent following the claimant’s grievance complaint in respect of her allegations in the matter.

 

(q)          In regard to the claimant’s complaint of unlawful discrimination, the grievance instituted by the claimant resulted in a formal investigation by the respondent. Documentation in respect of that investigation was inspected by the tribunal.  In a letter dated 7 October 2009 from the respondent’s Human Resources Director, Sharon McBrearty, the respondent confirmed that the finding of the grievance complaint investigation in respect of age discrimination was that William Gillespie had admitted that he had stated that it was cheaper to employ younger employees due to the national minimum wage rates applicable (this confirming one element of the claimant’s grievance).   The respondent's finding was that William Gillespie had conceded in the investigation that he had said that employing younger employees was cheaper for the respondent. 

 

(r)            The respondent’s investigation of the claimant's grievance further confirmed that the respondent had not found that the claimant received less hours on account of this cause.  The documentation discloses that various members of staff were interviewed by the respondent's management and questioned concerning aspects of the grievance raised by the claimant. As a result, the respondent concluded, based on the information gathered in the course of the investigation, that the hours of all employees were cut as part of a cost-saving exercise conducted by the respondent. 

 

(s)          The claimant’s grievance letter (following on from an initial letter written by the claimant herself a short time before) was a letter dated 6 August 2009 dispatched on behalf of the claimant by Messrs G R Ingram and Co, Solicitors. There was no express comparator named in that grievance letter in respect of the alleged discrimination.  In the claim made to the tribunal, the only comparator expressly identified for the purposes of the claim for unlawful age discrimination, was Alan McCready. There was no evidence adduced as to Alan McCready’s age.

 

(t)            Turning then to the evidence relating to the stated grounds for dismissal of the claimant, the claimant’s contention in her oral evidence, at times vague, unspecific and contradictory, was that there was effectively no proper formal process engaged in by the respondent prior to her being dismissed. The claimant stated that she had informed a manager (unnamed) prior to William Gillespie taking up his post that she had appeared in court concerning a ”domestic incident” and had been given a community service order. If William Gillespie commenced in his post as manager of the store at the start of January 2009, which the claimant asserted he had, the conviction and community service order imposed would have been prior to that. This was contrary to the documentary evidence that disclosed convictions of the claimant on 21 February 2009. The tribunal therefore treated this somewhat contradictory evidence the claimant's part with further circumspection. The claimant further asserted in her oral evidence that, whilst there had been some type of a meeting (presumably a reference on her part to the investigatory meeting preceding the disciplinary charges) she had received no notice of the disciplinary hearing. This is quite at variance with the evidence contained in the documentation concerning the respondent's conduct of the disciplinary proceedings that is mentioned further below. Thus the claimant's suggestion that there had been no proper formal investigation nor any formal invitation to attend the disciplinary hearing lacked credibility. 

 

(u)          On the first day of the hearing before this tribunal, neither the claimant nor her representative were in a position to produce a copy of the letter of dismissal. No proper explanation was afforded for that omission. In the light of the documentary evidence that was subsequently made available to the tribunal by the Administrators, the tribunal found the claimant’s approach to the case in this respect to be unsatisfactory and further went to the issue of her personal credibility.

 

(v)           The tribunal is concerned that a key document in the matter, the letter of dismissal, was not made available to the tribunal until a copy was produced by the Administrator. In the absence of that key document, the claimant endeavoured to portray to the tribunal a situation which was quite at variance to the facts. The true facts, however, subsequently came to light from an inspection of the documentation. This documentation indicates that there was indeed a documented formal process of disciplinary investigation engaged in by the respondent. There was an invitation extended to the claimant, on due written notice, to attend a disciplinary hearing. There was a documented formal disciplinary hearing. There was an outcome formally notified in writing to the claimant and reasons were clearly stated for the dismissal of the claimant on grounds of gross misconduct.  The tribunal is thus drawn to the inevitable conclusion that the claimant was engaged in an endeavour to mislead the tribunal in regard to significant issues of fact concerning the process leading to her dismissal.

 

(w)         The evidence discloses that the respondent became concerned at a notification received by the respondent that the claimant had been convicted at Craigavon Magistrates Court on 21 February 2009 on two criminal charges. The first of these convictions was for failure to surrender to custody  - breach bail contrary to Article 5(2) of the Criminal Justice (Northern Ireland) Order; the second of these convictions was that the claimant had been convicted on the same date, 21 February 2009, of the charges, respectively, of criminal damage contrary to Article 3(1) of the Criminal Damage (Northern Ireland) Order 1977 and of common assault contrary to Section 42 of the Offences Against the Person Act 1861.

 

(x)           In regard to the issue of notification of these convictions to her employers, the claimant was invited to an investigatory meeting (on a date that is regrettably not clear from the documentation) with Neil Keys, the respondent’s security manager. It appears that there had been an earlier investigatory meeting and that this latter was a follow-up meeting.  The claimant declined the extended invitation to have a fellow member of staff present. There was a fairly lengthy investigatory interview recorded with Neil Keys in writing running to some six pages.  Thereafter, by letter dated 8 July 2009 sent to the claimant by registered mail and first class mail, the claimant was invited to attend a disciplinary hearing by Sharon McBrearty.  A copy of the respondent's disciplinary procedures was enclosed with that letter.  The claimant was advised of her entitlement to be accompanied by a fellow employee or a trade union official.  The purpose of the hearing was clearly stated in the letter and, in summary, related to the perceived breach of the terms of the respondent's Employee Handbook (page 36 - copy was enclosed) concerning the reporting of criminal convictions. The claimant was suspended on full pay pending conclusion of the disciplinary process.

 

(y)           The disciplinary hearing duly proceeded on 11 July 2009 chaired by Liam Gough, a senior manager of the respondent (as the tribunal understands it possibly the respondent's Area Manager).  In the course of the hearing a series of pre-prepared formal questions were put to the claimant and her answers were recorded in writing. In the claimant's answers she made the express concession that she had not followed the correct rules but she endeavoured to assert that she had not faced a “real charge” as she put it for assault on her ex-partner.

 

(z)           By letter dated 16 July 2009 sent by registered mail and first class mail, the respondent wrote to the claimant and confirmed that the claimant was to be summarily dismissed for gross misconduct.  In the letter Sharon McBrearty referred to the disciplinary hearing held on 11 July 2009 and set forth the matters of concern for the respondent. These included that during the security investigation meeting with Neil Keys the claimant had admitted that on Friday, 20 March she had attended Craigavon Magistrates’ Court and had been convicted of two criminal charges of assault against her partner and that she had been given community service.  When questioned further, the claimant had admitted that she was at Court on three charges that day, the third relating to a shoplifting charge involving her and her sister in connection with a “SuperValu” Store in Craigavon.  It was recorded that the claimant had not advised the respondent company that she had been convicted of a criminal offence whilst employed by the respondent as per certain requirements detailed in the respondent's Employee Handbook.

 

(aa)     In that said letter dated 16 July 2009, the respondent set forth extracts from the respondent's Employee Handbook, at page 63, the material section being entitled “Criminal Convictions”.  In the absence of the entirety of the Employee Handbook being introduced into evidence, the extract cited in the letter was the only documentary evidence made available to the tribunal concerning the provisions of the respondent’s Employee Handbook applicable to the claimant’s employment with the respondent.  In her case the claimant did not take issue with the accuracy of that extract.  The extract in question as mentioned in the letter reads as follows:-  “A person who has been convicted of a criminal offence will not normally be employed by d2 unless the matter is legally spent or a Director has given permission.  If you are convicted of a criminal offence or receive a caution while employed by d2, you should let your Line Manager know (this does not include parking tickets).  Your Line Manager will then inform a Director who will decide whether the offence is likely to damage our reputation or reflects so badly on you that you should no longer be employed by us.  If they are satisfied there is no risk to the Company or its reputation, no further action will be taken.  If you are in doubt about whether to report the matter you can consult with HR.”

 

(bb)     The letter further recites that the reasons given by the claimant for her behaviour were as follows:- “You advised Will, your Manager, that you were going to court but you never told him the outcome.  You did not admit to the SuperValu incident, you do not have any convictions, your sister committed the crime and you didn’t know you were shopping.  You are being charged with Joint enterprise.  You did not read the rules properly about reporting charges to your Manager.  The charges you were given of criminal damage and assault are nothing relating to your work and does not affect your performance.  The SuperValu charge is Joint enterprise”. 

 

(cc)      Sharon  McBrearty in the letter then proceeds to state that, having listened to the claimant’s explanations, she found them to be unsatisfactory.  She records the finding to be that the claimant withheld information from the respondent company about appearing in Court on three charges and advising the company of the outcome.  The letter continues with the sentence:- “The SuperValu incident does damage the reputation of d2 as a local retailer.  You should have informed your Line Manager of the incident at the time and allowed the Company to make a decision on your future employment regarding this incident.  By withholding this information you have not followed Company procedure.”

 

(dd)     The claimant was advised of her entitlement to appeal the decision of dismissal. The claimant notified the respondent of her desire to appeal the decision by letter dated 1 July 2009 (but which said letter the tribunal believes was intended to be properly dated 21 July 2009).  The respondent’s response to this request for an appeal was that, as the claimant had also lodged a grievance relating to the dismissal and number of other matters, it was appropriate to deal with the grievance in advance of addressing the appeal from the dismissal. 

 

(ee)     As it transpired, whilst the respondent did address and deal with the grievance complaint, the appeal against the dismissal was never concluded.  Regrettably, there was no evidence placed before the tribunal as to why that dismissal appeal was never dealt with and concluded. The tribunal can only speculate whether there was or was not any connection with the respondent company being placed in administration not very long after these events had transpired but the tribunal declines to draw any definite conclusions in this regard, and it would be wrong to do so in the absence of any further explanation.

 

(ff)          Upon being dismissed, the claimant did not apply for state benefits for some reason which is not fully understood by the tribunal. There is no evidence that the claimant was not entitled to state benefits. The claimant stated that she relied upon financial support from family members.  The tribunal did not receive any evidence concerning the claimant's endeavours to obtain alternative employment. However, the claimant did commence employment on 6 October 2009 at a level of remuneration which was in excess of that which had been earned by her when she was employed by the respondent. The details in respect of all of the foregoing were briefly stated by the claimant in her oral evidence and the tribunal was denied any opportunity to clarify the matter with the claimant when the claimant did not appear further at the hearing.

 

(gg)     In regard to the wages earned by the claimant in her employment with the respondent, the tribunal experienced yet further evidential difficulties.  The claimant submitted in evidence five wages advice slips, these relating to monthly wages pertaining to the period 30 June 2008 to 30 January 2009.  No comprehensives evidence was provided to the tribunal regarding the claimant's earnings. No schedule of loss was provided to the tribunal nor, materially, was the tribunal given documentary or oral evidence in respect of the wages earned by the claimant in the period immediately prior to her dismissal.  The tribunal noted from the wages documentation provided that in January 2009 the claimant’s wage rate was £5.73 per hour.  The wages records available showed nil deductions each month for tax and national insurance in the five months in question.  The best that the tribunal was able to make of this evidence was to conclude that the applicable wage rate at time of dismissal was £5.73 per hour, with no deductions, the gross and nett wages therefore being the same.  In terms of what was actually earned each week at the material time, the tribunal computed the average weekly working hours at approximately 14.8 hours per week, producing a gross weekly wage (and corresponding nett wage) both of £84.80. This is the only figure available to the tribunal upon which any computation can be based.

 

(hh)      The tribunal does not need to determine any other material findings of fact for the purposes of reaching a determination of this case.

 

THE APPLICABLE LAW RELATING TO UNLAWFUL DISCRIMINATION

 

 

·                        It is for the claimant who complains of unlawful discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of the relevant statutory provisions (‘such facts’). 

 

·                        If the claimant does not prove such facts he or she will fail.

 

·                        Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the prohibited ground, then the burden of proof moves to the respondent. 

 

·                        It is then for the respondent to prove that he did not commit, or as the case may be is not to be treated, as having committed that act. 

 

·                        To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the prohibited ground.  

 

·                        That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it has adequately discharged the burden of proof on the balance of probabilities and that the prohibited ground was not a ground for the treatment in question.

 

17.      The application of the burden of proof was considered in Madarassy  v  Nomura International PLC [2007] EWCA Civ 33.  Mummery LJ (at paragraph 56) stated:-

 

“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 fact 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” will include evidence in support of the allegations of unlawful discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment.  It will also include evidence adduced by the respondent.

 

18.       The statutory provisions require the claimant to compare her circumstances with an actual or hypothetical comparator whose relevant circumstances are the same or are not materially different from those of the claimant.  Where there is no actual comparator the tribunal must identify the characteristics of the hypothetical comparator. However it is open to the tribunal to focus on the reason for the claimant’s treatment. As Lord Nicholls put it in Shamoon –v- Chief Constable of the RUC 2003 IRLR 285,  “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. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others."

 

THE APPLICABLE LAW RELATING TO UNFAIR DISMISSAL AND THE STATUTORY DISPUTE RESOLUTION PROCEDURES 

 

19.     In respect of the claimant's claim relating to unfair dismissal, the Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as “the 1996 Order”) provides at Article 126 of the 1996 Order that an employee has the right not to be unfairly dismissed by his employer.  Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer. It is for the employer under the provisions of Article 130 (1) (a) to show the reason (or, if more than one, the principal reason) for the dismissal, and, under Article 130 (1) (b), that it is either a specified reason as set out in Article 130 (2) or some other substantial reason of a kind such as to justify the dismissal. The specified (potentially fair) reasons for dismissal that are set out in Article 130 (2) include, amongst others, the conduct of the employee (invariably referred to as “misconduct”). The guidance bearing upon the application of these statutory provisions is derived from a number of leading cases. In these matters of dismissal for alleged misconduct, the leading authority remains the case of Iceland Frozen Foods v Jones [1982] IRLR 439 in respect of which guidance has been given and approval confirmed by the Court of Appeal in Northern Ireland in the case of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47, following similar guidance and approval having been given by the Northern Ireland Court of Appeal in  Dobbin v Citybus Ltd [2008] NICA 42. The tribunal in the exercise of its function is therefore very clearly guided by Iceland. Therein the guidance (as given by Browne-Wilkinson J and bearing in mind that the statutory provisions referred to are the equivalent to Article 130 of the 1996 Order in Northern Ireland and that there is now “neutral” burden of proof) is stated as follows:-

 

‘(1)    The starting point should always be the words [of section 57(3)] themselves;

 

(2)     In applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

 

(3)     In judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

 

(4)     In many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;

20.       If a tribunal makes a finding of unfair dismissal, and an order for re-engagement or re-instatement is inapplicable, a tribunal may make an order for compensation including both a basic award and a compensatory award. Under Article 153 of the 1996 Order the basic award is calculated with reference to the effective date of termination of employment and under Article 129 it is provided that if the contract is terminated without statutory notice (under Article 118) for the purposes of calculating the qualifying period for the basic award the date upon which the statutory period of notice would have expired is applicable. For the compensatory award under Article 157 of the 1996 Order, the compensatory award is such amount as the tribunal considers just and equitable having regard to the loss sustained by the complainant in consequence of the dismissal, insofar as that loss is attributable to action taken by the employer. It is possible to make a reduction in any award of compensation on account of contributory fault on the employee’s part.

21.    The Employment (Northern Ireland) Order 2003 (“the 2003 Order”) amends the 1996 Order and includes provisions, respectively, under Article 17(1) to (4), in relation to non-completion of statutory procedure: adjustment of awards by industrial tribunals and under Article 23, in relation to procedural fairness in unfair dismissal. Article 130A (1) of the 1996 Order (as inserted by the 2003 Order) provides that an employee who is dismissed, whether or not his dismissal is unfair or regarded as unfair for any other reason, is to be regarded as being unfairly dismissed if a statutory dismissal and disciplinary procedure (as set out in Part 1 of Schedule 1 of the 2003 Order) applies in relation to the dismissal, the procedure has not been completed, and the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements. Article 154(1A) of the 1996 Order provides that the basic award in any automatically unfair dismissal pursuant to Article 130A (1) must amount to at least four week’s pay unless that would be unjust to the employer.  Further, Article 130 A (2) of the 1996 Order, as amended, provides that the failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4) (a) as by itself making the employer’s action unreasonable. That is so if the employer shows that it would have decided to dismiss the employee if the employer had followed the procedure.  The effect of this latter, comparatively recent, amendment to the law which had prevailed hithertofore, is that if an employer can show it to be more probable than not that the employee would have been dismissed in any event (notwithstanding the failure to follow a procedure in relation to the dismissal) then that shall not of itself make the employer’s action unreasonable.  This is what has been referred to as the so-called “Polkey reversal”; prior to this amendment any failure to follow a procedure was a significant issue going to the matter of the fairness of any dismissal.

THE TRIBUNAL’S DETERMINATION OF THE ISSUES

 

22.             The tribunal has noted above the considerable evidential difficulties encountered in this case and the particular difficulties which have had to be addressed by the two differently constituted tribunals which have dealt with this case. It has to be clearly stated that the determination of the pertinent matters of fact and the application of the law to the facts determined in this case has been made a considerably difficult task, which task has been compounded by the claimant’s failure to attend the listed hearings on a number of occasions. The difficulty has indeed, it must be said, been further compounded for the reason that the claimant's oral testimony to the tribunal has lacked cogency and credibility. One rather striking example of this is the claimant’s endeavour to persuade the tribunal in her evidence that there was in reality no proper formal process engaged in by the respondent prior to her dismissal. This assertion can be properly regarded as an endeavour to mislead the tribunal in the light of the apparent assumption on the claimant's part that the tribunal would not have access to any of the pertinent documentation to counter that assertion.  The tribunal is compelled to take a rather serious view of that. 

 

23.             It has also been the case that the protracted nature of this matter is directly attributable to the claimant’s attitude to the proceedings and to the claimant's failure to assist the tribunal (as she is indeed required to do under the terms of the overriding objective) in giving clear and forthright evidence, such as is required by the tribunal in the necessary clarification of the issues to be determined.

 

24.             Dealing firstly with the tribunal’s determination of the claim of race discrimination, the claimant has identified one comparator expressly, that comparator being Alan McCready.  The claimant has not identified her own race, nationality or ethnic or national origins at any point in the evidence.  There has been a reference to “skin colour” in the paperwork. However, entirely absent from the matter is the adduction of any evidence to assist the tribunal in conducting the necessary comparative exercise required to be conducted by the statutory provisions. The tribunal cannot embark upon an exercise in pure speculation in the absence of clear evidence. It would be quite improper and unjust for the tribunal to do so.  It is for the person asserting any claim to make the position entirely clear and the claimant has failed to do that.

 

25.             If one then turns to the expressly selected comparator, Alan McCready, there is no evidence concerning Alan McCready’s colour, race, nationality or ethnic or national origins provided at any point in the case.  There is no evidence therefore upon which the tribunal can ground any direct comparison for the purposes of determination of the claim of unlawful race discrimination.  Again, the tribunal cannot engage in any speculative exercise in this regard. There is also no clear information enabling the construction of a hypothetical comparator and indeed there was no clear and compelling evidence to support such a hypothetical comparison.

 

26.             The statutory provisions regarding the burden of proof and the application of the law as set forth in the case of Igen have been mentioned above.  As a first step, it is for the claimant who complains of unlawful discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of the relevant statutory provisions.  In this respect, the tribunal has very little difficulty in unanimously finding that the claimant has failed to adduce any such evidence in respect of the claim of race discrimination.  The claimant has failed to prove on the balance of probabilities such facts as are essential to draw the conclusion required.  Thus the tribunal cannot find that there has been unlawful discrimination on this ground and this claim is dismissed by the tribunal.

 

27.             Turning then to the claimant's claim of age discrimination, one comparator has been expressly identified by the claimant and that is Alan McCready.  The claimant has confirmed her age, not in her direct oral evidence, but in her originating claim form, that is to say 29 years and the tribunal accepts that to be correct. The tribunal has received no evidence concerning Alan McCready’s age. It is therefore impossible for the tribunal to conduct any direct comparison for statutory purposes.  There was no express argument made in submissions in the case in respect of any hypothetical comparison. If the tribunal is by implication invited to conduct such a comparison, for the claimant to succeed she must rely upon there being some clear and cogent evidence of less favourable treatment which is connected to the prohibited ground, that being age.  Thus, following Igen, as a first step, it is for the claimant to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of the relevant statutory provisions. In this case the comparison will be between the claimant and a hypothetical comparator who is in the same or in not materially different circumstances to the claimant, save for the prohibited ground.

 

28.             In this respect the tribunal notes the evidence of the remark stated to have been made by William Gillespie that it was cheaper to employ younger employees. Having noted that, there is no clear and compelling evidence that the claimant received less hours of work than any hypothetical comparator in any way determined upon or connected with grounds of age. There is no evidence concerning any hours of work afforded to any employee other than Alan McCready and the claimant. There is certainly some evidence that the respondent was stated to be generally cutting back on the hours of work afforded to all employees “across the board” as it were, in conducting a cost-cutting exercise.  In this respect the tribunal reminds itself of the words of Mummery LJ in Madarassy mentioned above, in reference to the case of Igen, expressly rejecting 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 fact 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.

 

29.             Looking at all of this, the tribunal's determination is that the claimant has failed to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of unlawful discrimination on grounds of age against the claimant.  Accordingly, the claimant’s claim for age discrimination fails in this respect. This claim is dismissed by the tribunal,  by unanimous decision.

 

30.             Turning then to the claim of unfair dismissal, it is indeed now clear to the tribunal that there was quite a thorough and generally procedurally correct and proper approach taken by the respondent in respect of the disciplinary charges levelled against the claimant.  Far from there being no proper process preceding the dismissal, as the claimant would have wished the tribunal to believe based upon her testimony, the documentary evidence makes clear that there was a process which was directed from the highest level within the respondent’s organisation by Sharon McBrearty, the respondent’s Human Resources Director.  The process was not without its faults however in terms of making things entirely clear.  Sharon McBrearty is stated to have misinterpreted information which was gained by her as a result of the disciplinary investigation.  This was a point picked up by the claimant’s solicitors in the appeal against the dismissal.  The point taken was that Sharon McBrearty made the assumption that there was a criminal conviction in respect of what has been referred to as the “SuperValu incident”, whereas by the stage of the disciplinary hearing and of the dismissal, the claimant was merely facing a charge, together with her sister (the latter indeed having apparently absconded from the country) in regard to the “ SuperValu incident”.

 

31.             Whilst there is certainly some lack of clarity in regard to some of respondent’s documentation, what is entirely clear to the tribunal is that reputational damage was a very significant issue as far as the respondent was concerned at the time of these disciplinary proceedings.  Whilst there seems to have been no criminal conviction of the claimant in respect of the “SuperValu incident” at the time of dismissal, there had indeed, by that point, been recorded a conviction of the claimant for breach of a bench warrant to appear in court, that conviction being made by the court on 21 February 2009.  This particular conviction related to the claimant’s failure to appear in court to face criminal charges in connection with the “SuperValu incident”. There was also another conviction which is as mentioned above.

 

32.             The tribunal’s interpretation, from a careful scrutiny of the documentation (and indeed notwithstanding that this is not particularly clearly expressed by her) is that Sharon  McBrearty was aware of the claimant’s conviction in respect of the pending SuperValu incident (that is to say the bench warrant conviction for failure to appear in court in respect of the SuperValu incident). Thus the determination that the claimant had breached company procedures in this respect was a reasonable determination by the disciplining authority to be arrived at following a reasonable investigation by the respondent company.

 

33.              In these cases the tribunal must first and foremost consider the statutory provisions contained within Article 130 of the 1996 Order. The tribunal is obliged to give consideration to the reasonableness of the respondent’s conduct as employer, not simply whether they, the members of the tribunal, consider the dismissal to be fair. The tribunal takes cognisance of the fact that, in judging the reasonableness of the respondent's conduct, the tribunal must not substitute its decision as to what was the right course to adopt for that of the respondent employer. Bearing this important issue in mind, the tribunal considered whether or not the respondent's decision to dismiss under these circumstances fell within or without the band or range of reasonable responses to the employee's conduct of a reasonable employer. Applying the settled law in respect of matters of unfair dismissal as is mentioned above, such as has been enunciated in Iceland Frozen Foods and as approved by the Court of Appeal in Northern Ireland in Rogan, the tribunal's determination is that the decision of the respondent to dismiss the claimant under these particular circumstances, viewed objectively, falls within the band of reasonable responses of a reasonable employer.

 

34.             Turning then to the implementation of the statutory procedures of the 2003 Order mentioned above, it is clearly the case that the statutory procedures concerning the claimant's appeal in relation to the dismissal were not concluded.  Responsibility for failure to conclude the procedures rests fully with the respondent. The tribunal cannot speculate as to the reason for that failure on the respondent's part.  Accordingly, on foot of Article 130A of the 1996 Order the dismissal of the claimant by the respondent is unfair on that ground.  Thus, the tribunal finds unanimously that the claimant was unfairly dismissed on that basis alone.

 

THE TRIBUNAL'S DETERMINATION IN RESPECT OF REMEDY

 

35.             In respect of compensation for unfair dismissal, under these circumstances the tribunal makes a basic award equivalent of four weeks nett pay, which is set out as indicated below. The tribunal is not satisfied (having heard no evidence or submissions in that regard) that to do so would be unjust to the respondent.  Regarding the compensatory award, the claimant did not claim state benefits upon being dismissed by the respondent.  There was no reason given for that omission. On her own evidence, the claimant did nothing to mitigate her loss consequent upon dismissal other than to rely on members of her family for financial support.  There is no evidence of any income whatsoever earned or received by the claimant prior to 6 October 2009, that latter being the date upon which the claimant obtained employment. There is no evidence of any steps taken by the claimant to secure alternative employment prior to 6 October 2009. However, in any case it is for the respondent to advance the argument that the claimant has failed to mitigate her loss. On 6 October 2009, the claimant was fortunate to gain employment at a level of remuneration which exceeded that which had been earned by her in employment with the respondent. Any potential loss consequent upon the dismissal came to an end at that point.

 

36.             In these matters, the tribunal is obliged to consider the issue of deduction for contributory fault.  In this case, the tribunal took account of the claimant's conduct at the time of dismissal and whether it would be just and equitable to make a deduction on account of contributory fault. This conduct taken into account is a separate matter to any matters of fact pertaining to the fairness or otherwise of the dismissal. The tribunal has a broad discretion in that regard, dependent upon the justice and equity of the matter, and thus is entitled to look at all the relevant facts and circumstances bearing upon the matter of the claimant’s contributory fault.  Taking everything into account, the tribunal determines that under these circumstances it is just and equitable to reduce the compensation by 50% on account of contributory fault on the part of the claimant.  That percentage deduction has been applied to the award of compensation which follows below.

 

            The award of compensation for unfair dismissal is therefore as follows:-

 

The Basic Award

 

In this case the claimant’s gross pay per week was £84.80 for the purposes of computation.  The tribunal awards 4 week’s pay under Article 154(1A) of the 1996 Order, which provides that the basic award in any automatically unfair dismissal pursuant to Article 130A (1) must amount to at least four week’s pay. 

 

           The basic award in this case is £84.80 x 4 = £339.20.

 

The Compensatory Award

 

Under Article 157 of the 1996 Order the compensatory award is such amount as the tribunal considers just and equitable having regard to the loss sustained by the complainant in consequence of the dismissal, insofar as that loss is attributable to action taken by the employer. In this case the effective date of termination is 16 July 2009 and the end date for the loss flowing from the dismissal is 6 October 2009.  The applicable period for the loss amounts to 12 weeks. The tribunal had some significant concerns regarding whether it was proper to award loss for the entirety of this period in the absence of information from the claimant concerning mitigation of loss but, on balance, the tribunal thinks that it is proper to do so under all of the circumstances. The claimant's nett pay upon which the computation of loss is based is a figure of £84.80 per week. The consequent compensatory award is thus as follows:-

 

            £84.80 x 12 weeks = £1,017.60

 

 

Compensation for Loss of Statutory Rights

 

The tribunal’s award for loss of statutory rights = £250.00.

 

Total award before deductions

 

          The total of the basic award, the compensatory award and the award for loss of    statutory rights, before deductions, is thus £1,606.80.

 

Deductions from award for contributory fault

 

          In this case the tribunal has determined that it is just and equitable to reduce the award by a figure of 50%, producing a nett figure after deduction amounting to £803.40.

 

RECOUPMENT OF BENEFIT FROM AWARDS

 

37.    This does not apply as there is no evidence that the claimant did receive any social security benefits to which the Employment Protection (Recoupment of Job Seeker’s and Income Support) Regulations (Northern Ireland) 1996 apply.

 

INTEREST

 

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

 

 

 

     

 

 

Chairman:

 

Date and place of hearing:  30 September, 1 October and 11 November 2010, Belfast.        

Date decision recorded in register and issued to parties: