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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Stirrup v Ufuoma Obahor T/A Summers Dry ... Ufuoma Obahor T/A Summers Dry ... [2011] NIIT 00593_10IT (08 August 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/593_10IT_2.html
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 593/10
1712/10
CLAIMANT: Anna Elizabeth Yvonne Stirrup
RESPONDENT: Ufuoma Obahor T/A Summers Dry Cleaners
DECISION
The unanimous decision of the Tribunal is that the claimant was unfairly dismissed by the respondent and that the dismissal was victimisation, contrary to Regulation 4 of the Employment Equality (Age) Regulations (NI) 2006. We also find that the claimant suffered unlawful deductions from her wages, contrary to Article 45 of the Employment Rights (NI) Order 1996. We order the respondent to pay to the claimant the sum of £13,153.80 in respect of the unfair dismissal claim, £10,000 in respect of injury to feelings for the victimisation claim together with interest in the sum of £928.76 to the date of this decision and £65.00 in respect of the unlawful deduction from wages.
Constitution of Tribunal:
Chairman: Miss E McCaffrey
Members: Mrs S Doran
Mrs K McCrudden
Appearances:
The claimant was represented by Mr R Fee BL, instructed by the Equality Commission.
The respondent was represented by Mr T Sheridan of Peninsula Business Services Ltd.
THE ISSUES
The issues for the tribunal to decide were as follows:-
1. Whether the claimant was unfairly dismissed?
2. Whether the claimant was victimised on the basis of her age contrary to the Employment Equality (Age) Regulations (Northern Ireland) 2006?
3. Whether unauthorised deductions were made from the claimant’s wages contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996?
THE FACTS
4. The tribunal heard evidence from Mr Obahor the respondent and from the claimant, Mrs Stirrup as well as from Mr Ronnie Corbett (Unite Union representative). On the basis of the evidence heard we make the following findings of relevant facts.
5. The claimant worked for the respondent as a dry cleaning operative at his premises in Cookstown. Her employment commenced on 19 February 2007 and terminated on 4 June 2010. It was conceded that the respondent dismissed the claimant and he said this was on grounds of gross misconduct. The claimant argued that she was unfairly dismissed and that her dismissal also constituted victimisation, because she had already brought an age discrimination claim against the respondent.
6. The claimant worked a five day week until August 2009 when the respondent decided to reduce her hours to part-time hours. Following that the claimant brought an age discrimination claim against the respondent which was heard by an Industrial Tribunal on 19 April 2010. The claimant however continued working for the respondent in the interim. It was during this period that the events leading to these claims occurred.
7. The claimant believed that her relationship with the respondent had deteriorated after she brought the age discrimination claim. She indicated that he could be quite offhand and nasty and that she was reduced to tears in the shop from time to time.
8. There were two main matters which gave rise to complaints by the respondent against the claimant. The first of these was an estimate which the claimant gave to a customer for insurance purposes on 10 February 2010. The claimant said that there was no set procedure for providing an insurance estimate. However, because she was mostly in the shop on her own, she adopted the practice similar to what had been done in an electrical shop when she worked there. Usually, orders were written on a docket, with two carbon copies underneath. There was a space to write the customer’s name, address and phone number and then the dry cleaning to be done was itemised and priced. The claimant then took off the top copy, wrote “estimate” on the top copy and on the top of the second copy she wrote “not received.” She also said that she had given similar estimates on a number of occasions before, without any issue being raised about it. There was a difference in the evidence given by the claimant and the respondent on this point. The respondent said that he only discovered this docket one day when he was in the shop when the claimant was not working and that the words “not received” were not at that time written on the second copy. His evidence to the tribunal was that he had gone around the shop searching for a number of the items, including a wedding dress, listed on the estimate and was concerned that he could not find them. He said that he phoned the claimant about this at home. Her evidence however was that he phoned her at home about a different matter and then she mentioned to him that she had done the estimate. She said that he did not make any particular response when she mentioned it. This telephone conversation took place within a day or two of her having written the docket. The docket was produced to the tribunal and it was dated 10 February 2010, with the words “not received” written on it. We note that the respondent only alleged that he had written “not received” on the docket on the second day of the hearing, when the docket was produced to the tribunal and he was recalled to give evidence, having previously finished his evidence.
9. The respondent’s view on this matter was that the claimant had given an estimate without seeing the items, which the customer had told her had been water damaged in a flood. He was concerned that his business was being implicated in a potential insurance fraud and therefore he was very unhappy about this. He said that an insurance estimate was usually written on headed note paper and not on dockets, but he did not produce any evidence of any training which had been given to staff in relation to this matter. The respondent did not contact the customer concerned, nor did he produce any evidence to back up his suspicions of insurance fraud. On balance and having heard the account of the matter given by both witnesses, we believe that the claimant’s evidence in this matter was more credible and we accept that she did write “estimate” on the top copy and that it was her writing which appeared on the carbon copy with the words “not received.” We also accept she was not given any training as to the correct procedure for preparing insurance estimates.
10. The second incident related to two jackets which were left in for cleaning. The claimant was not involved with the first jacket, which had been wrongly matched with other items by another employee, Ezequiel. The customer who was given the wrong jacket returned it, but his own jacket could not be found. It was not clear to us what the outcome of this was, as the respondent first said that Ezequiel had probably been warned about the matter and then said that he had received a written warning. The respondent did not produce a copy of the warning. It is clear that Ezequiel was not dismissed as a result of his error.
11. The second jacket was one of three received by the claimant on 12 February 2010. There were two gents’ jackets and one lady’s jacket. The lady’s jacket was cream coloured and the claimant said it was very grubby. She believed it was too dirty to dry clean, so she washed it. She said that she put it on a coat hanger, hung it on the line and went home. This was on the Friday afternoon and was the last time that she saw the jacket. She did not work on Mondays and Tuesdays and when she came back to work the following Wednesday, she did not notice that the jacket was not there as she only worked part-time. However, the following week she went to match up the gent’s jackets with the lady’s jacket and could not find the cream coloured jacket. At this stage she did not panic, because she was aware that sometimes people who left several items in for cleaning would come back to lift items at different times. She said that if they did that while she was there, she would score off the item collected on the docket but she was aware that the other staff did not always do that.
12. The next day, Thursday, a gentleman came in to lift the three jackets. The claimant asked him if the cream jacket had been collected and he said no. The claimant then apologised and said that she couldn’t find it at the moment and that she would have another look. The gentleman took the two gent’s jackets and said that he would come back later in the day. His daughter, who was the owner of the jacket, arrived about 5.00 pm and said that she needed the jacket for a wedding on Saturday. She then said she would ask her father to call again on the Friday. When the gentleman came in on Friday morning the respondent was in the shop. The claimant told him what had happened and said this was her first opportunity to speak to him about this matter because he had not been in the shop on the Thursday. The claimant indicated that she was scared to tell the respondent about this, but told him nevertheless. The respondent told the claimant to tell the customer to buy a jacket and that he would refund the money which he did. No evidence was given of any further discussion between the claimant and the respondent about the matter on the day. The claimant indicated that when these two incidents had happened, she did not think there was any particular significance in them nor did she think that she had been at fault in any way.
13. It was not until 12 March 2010 the respondent held a meeting with the claimant and with two other members of staff, namely Joanna and Ezequiel. This meeting was apparently to discuss a jacket which had gone missing from the shop and which had been wrongly paired up with other items by Ezequiel. The second matter for discussion was the jackets taken in by the claimant on 12 February 2010. The type written note of the meeting indicates that the respondent was only told about this matter on 5 March 2010, but on the basis of the Claimant’s evidence, it appears the respondent was told much sooner, probably on 19 February. The third matter for discussion was the insurance estimate given by the claimant.
14. The hand written notes of the meeting simply refer to the fact that the customer called in saying that she had had a leak in the roof, clothes had been damaged and the claimant had given her an estimate without seeing the clothes. The type written notes of this matter are headed “false receipt giving (sic) out to a customer for insurance claim.”
15. The claimant, Ezequiel and the respondent all signed the handwritten notes. Joanna who was present at the meeting was not asked to sign the notes. The respondent was unclear as to why Joanna had not been asked to sign the notes and where she had been after the meeting ended. He suggested she was not there, but the claimant was clear that Joanna had been at the pressing machine throughout the meeting. The claimant said that she had not had an opportunity to read the notes of the meeting herself but had signed because she felt pressurised by the respondent to do so. The respondent’s typewritten version of these notes states “This meeting came to a close at this point. All staff signed and dated draft to certify that all information written down at the meeting was correct and the truth.” Our finding is that there are considerable discrepancies between the hand written and typed written notes and we find that the hand written notes prepared at the time are a more accurate account of the discussion which took place than the typed written notes, which appear to have had comments added by the respondent.
16. The claimant indicated that when these two incidents had happened, she did not think there was any particular significance in them nor did she think that she had been at fault in any way. However, at the meeting on 12 March she was concerned because she said that the respondent was quite irate and obliged her to sign the minutes. There was no further discussion about this matter until 8 April when the claimant was given a letter of suspension, indicating that she was being suspended on full pay following allegations of “A false receipt given out for insurance claim and not notifying owner of missing jackets.” She said, and we accept, that she had never been suspended from work before and that when she read the letter, she cried on the walk home.
17. The suspension letter indicated that there would be further investigations and that the claimant should attend a disciplinary meeting on 14 April at 10.00 am. She was also told that these matters were regarded as potentially gross misconduct and that if she was unable to provide a satisfactory explanation her employment may be terminated without notice. She was told in the letter that she was entitled to be accompanied at the meeting. On cross examination, the respondent agreed that no further investigation had been carried out between the date of the suspension letter and the disciplinary meeting, when it eventually took place.
18. On 12 April the claimant wrote a letter to the respondent asking for a copy of the estimate docket and requesting a copy urgently. She also enclosed a sick line from her doctor stating she was on sick leave due to stress at work and indicating that she could not come to the disciplinary meeting on 14 April.
19. On 13 April, the respondent wrote to the claimant indicating that he would arrange for her to be paid statutory sick pay and that her disciplinary hearing had been rescheduled for Wednesday, 28 April at 10.00 am. That letter indicated that if she was unable to attend the rescheduled meeting, the respondent would either consider matters in her absence and make a decision or would request a medical report. We note that the hearing in relation to the claimant’s age discrimination case was due to take place on 19 April and did proceed on that date.
20. On 30 April 2010 the respondent wrote again to the claimant indicating that he had received a telephone call on 28 April indicating that the claimant would not be able to attend the disciplinary hearing scheduled for 28 April. That letter indicated that the disciplinary hearing had been rescheduled for 26 May at 10.00 am at Summers Dry Cleaners.
21. On 5 May the claimant wrote to the respondent in relation to her sick pay and the fact that the respondent had indicated in an earlier letter that no payments would be given to anyone other than the claimant. The claimant indicated that she would ask her sister-in-law to collect her cheque. On 21 May the claimant wrote to the respondent indicting that she was “still too stressed” to attend the disciplinary meeting schedule for 26 May and indicating that she was enclosing a sick line. On 26 May the respondent wrote to the claimant, indicating that she had failed to attend the disciplinary meeting and had not informed the respondent of any reason for failing to do so. He indicated the hearing had been rescheduled for 2 June at 10.00 am at Summers Dry Cleaners. The letter went on to allege that the claimant had ignored “the clear warning and management instructions set out in the above letter that failure to attend the disciplinary meeting on 14 April 2010 without notification or good reason would be treated as a separate disciplinary offence which could result in the summary termination of your employment.” The letter went on to say that this issue would be considered at the meeting on 2 June and that if the claimant failed to attend the rescheduled meeting without notification or good reason she could “take this as a final warning” that would be treated as a second and continued failure to obey a reasonable management instruction, which would then be viewed by the company as potentially gross misconduct.
22. On 28 May the claimant wrote to the respondent, pointing out that she had left in an envelope with a sick line for another four weeks at the respondent’s premises on 21 May. She had also left a letter stating that she would not be attending a disciplinary hearing on 26 May. Her letter ended “I will not be in for this meeting as I feel bullied and stressed.” The respondent denied that he had received the letter of 21 May, but we accept the claimant’s evidence that she left the letter with Ezequiel at the respondent’s premises.
23. The claimant did not attend the disciplinary meeting on 2 June 2010 but the respondent produced notes of this disciplinary meeting at which he considered the allegations against the claimant. Perhaps not surprisingly, the outcome was that the respondent decided the claimant was guilty of gross misconduct and that she would be dismissed. The respondent agreed on cross-examination that the insurance estimate was the main ground for dismissal, but his dismissal letter to the claimant refers to all three grounds for disciplinary action. These were the insurance estimate given by the claimant, failure by the claimant to tell the respondent of the missing lady’s jacket and her failure to obey a work instruction by not attending a disciplinary meeting while off on sick leave.
24. A letter was sent to the claimant dated 4 June 2010 communicating the respondent’s decision that the claimant would be summarily dismissed. The respondent produced a letter dated 10 June 2010 which he had sent to the claimant in relation to an appeal and the claimant did indeed lodge an appeal letter dated 11 June 2010. In that letter she stated that she had been advised by her union representative that she had no case to answer as she was innocent of all charges. The relevant part of her letter reads as follows:-
“Regarding the 2 jackets that went missing
· I did not misplace them
· I did not take or steal them
· I was the person who informed one of the customers and the other customer came in on a day when I was not working.
Regarding the allegation of being involved in an illegal insurance claim – this is a false statement.
Regarding not coming into your premises for meeting
· I am off work due to “stress at work”
· The idea of coming into Summers Dry Cleaners made me even more stressful
· I feel what you are trying to do to me mentally is very wrong
· Also that you are always trying to intimidate me.
I am appealing your decision which I feel you have not investigated at all.”
25. The claimant was invited to an appeal meeting on 23 June at Cookstown Leisure Centre. Two sets of minutes of that meeting were produced. One was prepared by Mr Ronnie Corbett, a Union representative, who attended as a friend of the claimant. The other set of minutes have been prepared by the respondent. The minutes were not agreed. The respondent indicated that the notes had been prepared by his wife, who did not attend the tribunal to give evidence. Neither the notes of the meeting prepared by the respondent nor those prepared by Mr Corbett provide a clear picture of what occurred at the meeting. The respondent has recorded Mr Corbett as saying that Mrs Stirrup had no knowledge of the insurance docket and the claimant would be denying any knowledge of it. It appears from Mr Corbett’s notes that reference was made to a discrepancy between the docket which had been provided to the claimant and the comments made by the respondent. It appears to us that the meeting was not conducted in a clear and coherent fashion. The claimant was not given a proper opportunity to put forward her account of events on each of the charges in turn, whether through herself or Mr Corbett as her representative. The respondent appears to have treated the issue of the missing jacket and of the estimate for insurance purposes as being gross misconduct, without any further examination or question as to whether these issues actually constituted gross misconduct. There does not appear to have been any real consideration of the third issue, namely, whether the claimant’s failure to attend the disciplinary meeting was gross misconduct.
26. Following the meeting, a letter was written to the claimant dated 2 July 2010 indicating that her appeal was unsuccessful. According to the notes of a Case Management Discussion held in relation to this matter on 29 October 2010, the tribunal’s decision in relation to the claimant’s claim of age discrimination was issued on 24 June 2010 and would therefore have been received by the parties shortly thereafter. That decision found that the respondent had unlawfully discriminated against the claimant on grounds of her age.
27. The claimant agreed that she remained as certified as sick by her doctor and suffering from stress for some time after her dismissal. The claimant indicated that on some days she felt so low that she stayed in her pyjamas all day. She said she found it hard to go out of the house and was suffering stress, headaches and pain across her shoulders and chest pains. She said that she had always worked from the age of 17 and that she had never been off work previously. She said she believed that she was an efficient employee and that prior to her suspension by the respondent, her last sick line had been in 1999 when she had had an operation for a hysterectomy. Following the claimant’s dismissal she said she had been too scared to seek other employment because of the way she had been treated by the respondent. She produced to the tribunal a letter from the Social Security Agency regarding a Condition Management Programme to which she had been referred by her General Practitioner and by the Employment Support Allowance staff. She indicated that she had had to attend an independent doctor at the Social Security Agency and his report was that she was unfit to return to work. The claimant remains in receipt of Employment Support Allowance of £91.40 per week. Had she not been in receipt of sick pay/Employment Support Allowance, her total loss from the date of dismissal was £8,760.00 and she was suffering an ongoing loss of £54.60 per week.
28. In relation to the issue of unlawful deduction of wages, the claimant gave unchallenged evidence that on the 18 December 2009 the respondent had given her the sum of £340.00 cash in respect of wages. She did not receive any further payment until 8 January 2010 when she received £175.00, making a total of £515.00. Her net weekly wage was £146.00 for the four week period between the 18 December and the 8 January. Her total pay therefore should have been £584.00 but she received only £515.00. There was therefore a shortfall of £69.00. The respondent’s evidence in relation to this point was that he had checked with his accountant and the claimant was owed only £4.00 and he had paid her that amount. The respondent did not however produce any documentary evidence of this. On balance we accept the claimant’s evidence that she was paid £69.00 less than she was entitled to receive.
The Relevant Law
29. The relevant law in relation to unfair dismissal is to be found at Article 130 and following of the Employment Rights (Northern Ireland) Order 1996. The relevant parts of Article 130 read as follows:-
"(1) In determining for the purpose of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –
(a) The reason (or if more than one the principal reason) for the dismissal; and
(b) That it is either a reason falling within paragraph 2 or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) The reason falls within this paragraph if it –
(a) Relates to the capability or qualifications of an employee for performing work of the kind he was employed by the employer to do,
(b) Relates to the conduct of the employee
(c) Is that the employee was redundant or
(d) Is that the employee could not continue in a position which he held without contravention (either on his part or on that of his employer) of a duty or a restriction imposed by or under a statutory provision.”
30. Article 130 (A) Procedural Fairness
(1) An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if:-
(a) one of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal,
(b) the procedure has not been completed and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(2) Subject to paragraph 1, failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarding for the purposes of Article 130 (4)(A) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.
(3) For the purposes of this Article, any question as to the application of a procedure set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to Regulations under Article 17 of that Order.”
31. The
case law on dismissal by reason of misconduct is well-established and was reviewed
in some detail in the judgment of the Northern Ireland Court of Appeal in Rogan
v South Eastern Health and Social Care Trust [2009] NICA 47, where
Morgan LCJ set out the tests to be applied by Tribunals in deciding
whether a dismissal is unfair or not. We briefly set out the test identified
by
Browne-Wilkinson J in Iceland Frozen Foods v Jones [1983]
ICR 1283:
(1) the starting point should always be the words of [Article 130] 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;
(5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.
32. In misconduct cases , such as this one, we must also have regard to the criteria in British Home Stores v Burchell [1980] ICR 303, where it was stressed that the Tribunal must be satisfied that the employer had a reasonable belief in the guilt of the employee at the date of dismissal. The employer must show the fact of his belief, reasonable grounds to sustain that belief and thirdly, he must show that he has carried out as much investigation into the matter as was reasonable in all the circumstances of the case.
33. We are also conscious of the dicta of Richards LJ in R (N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605, cited with approval in Rogan, to the effect that the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before the court will find the allegation proven on the balance of probabilities.
34. In relation to the claim of victimisation alleged by the claimant against the respondent, the relevant legislation is Regulation 4 of the Employment Equality (Age) Regulations (Northern Ireland) 2006. That Regulation reads as follows:-
“4(1) For the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if he treats B less favourably than he treats or would treat other persons in the same circumstances, and does so by reason that B has –
(a) brought proceedings against A or any other person under these regulations
(b) given evidence or information in connection with proceedings brought by any person against A or any other person under these regulations
(c) otherwise done anything under or by reference to these regulations in relation to A or any other person or
(d) alleged that A or any other person has committed an act which (whether or not the allegations so states) would amount to a contravention of these regulations,
or by reason that A knows that B intends to do any of those things, or suspects that B has done or intends to do any of them.
(2) Paragraph (1) does not apply to treatment of B by reason of any allegation made by him, or evidence or information given by him, if the allegation, evidence or information was false or not made (or, as the case may be given) in good faith.”
35. In this case, it is clear that the claimant had brought age discrimination proceedings against the respondent earlier and so she had done a “protected act“ within the meaning of regulation 4. To satisfy the second limb of the test, the claimant must show that she has been less favourably treated than others in the same relevant circumstances. The comparator can be actual or hypothetical, but the circumstances must be relevant. For example, in Nagarajan v London Regional Transport [1998] IRLR 73, the claimant had brought race discrimination proceedings against the respondent. He then applied for a job with the company, but when he asked why his application had not been dealt with, he was told it had not been received. The vacancy was still open and the tribunal drew the inference that, because the claimant was not invited to reapply, he was treated less favourably than other job applicants. The Court of Appeal held the correct approach would have been to ask whether other job applicants, whose job applications had gone astray, would have been invited to reapply.
36. The third limb of the test requires the claimant to show that the less favourable treatment was “by reason that” the claimant did a protected act, that is, that there is a causal link between the protected act and the treatment received. In West Yorkshire Police v Khan [2001] ICR 1065 HL, Lord Scott said that the words “by reason of” suggested to him that it was “the real reason, the core reason, the causa causans, the motive for the treatment complained of that must be identified.”
37. On the third question, that of unlawful deductions from wages, the relevant legislation is to be found in Article 45 of the Employment Rights (NI) Order 1996. This provides a remedy for an employee where a payment to which he or she is contractually entitled is deducted from his wages without his consent.
DECISION
38. Was the claimant unfairly dismissed?
There is no question in this case that the claimant was dismissed and so the only issue for us to consider is whether the dismissal was unfair. We are satisfied that the basic stages of the statutory dismissal procedure were followed, so the dismissal was not automatically unfair. Applying the case law set out above, the crux of the matter is this: was the dismissal within the band of reasonable responses, given the level of knowledge which the respondent had when he dismissed the claimant? Was his decision based on reasonable evidence after a reasonable investigation had been carried out? We are conscious, bearing in mind the decisions in Burchell, Iceland Frozen Foods and Rogan referred to above, that we must not substitute our own decision for that of the dismissing employer. However we are entitled to consider whether his decision was made with reasonable evidence and we will consider each ground for dismissal in turn. Before doing so, however, we note the content of the Labour Relations Agency’s Code of Conduct on Disciplinary and Grievance Procedures which states that acts of gross misconduct “…whilst they occur only once, might be said to strike at the very root or heart of a contract of employment such as to destroy the essential bond of trust and confidence between the parties to the contract.” (para.61). The Code also states that employees should never be dismissed for a first disciplinary offence, unless it is case of gross misconduct (Core principles of reasonable behaviour, p.10). The claimant had a clear disciplinary record before the incidents giving rise to this claim.
39. The respondent said at the hearing that his main reason for dismissing the claimant was the “insurance claim” issue, because he believed that the damaged clothes for which the estimate was requested had not been seen and therefore that he could be implicated in an insurance fraud. He gave no evidence to justify this and indeed did not contact the customer involved, although he had her contact details and could have done so easily. The claimant was clear, and we accept, that she marked the top copy of the docket “Estimate” and that the second copy was marked “Not received”, so it is difficult to see how the respondent could have reached the view that the claimant’s behaviour was fraudulent or constituted falsification of documents as alleged. We are of the view that the respondent’s grounds for dismissing the claimant on this count are flimsy, to say the least.
40. On the question of the missing jacket, the respondent disciplined the claimant for failing to tell him the jacket was missing. However the claimant was clear in her account of what happened and we accept that she told the respondent about the jacket as soon as she had established that it was indeed missing. We cannot see how failure to tell the respondent that the jacket was missing, particularly when it is not alleged that the claimant was in anyway responsible for the jacket’s disappearance, constitutes misconduct, let alone gross misconduct. It is certainly not referred to as such in the company handbook. Nor was there any evidence of any other investigation by the respondent which produced compelling evidence to demonstrate any wrongdoing on the claimant’s part and certainly nothing which would justify the ultimate sanction of dismissal.
41. On the third ground, which was the claimant’s failure to attend a disciplinary meeting while certified as sick by her doctor, the respondent also treated this as gross misconduct. This would certainly not be considered as best practice, in fact we were extremely surprised at the approach taken by the respondent on this matter. The LRA Code advises that where an employee cannot attend a meeting due to illness, the meeting should be rearranged. We have never come across a situation before where an employee who is certified as sick is disciplined for not attending a meeting on the basis that she has failed to follow a reasonable work instruction. Nor are we aware of failure to follow a reasonable work instruction being treated as gross misconduct unless it is a matter of the utmost seriousness, which would have grave repercussions for the business involved. We do not accept therefore that the respondent has demonstrated that he had reasonable grounds for treating this matter as misconduct, much less gross misconduct and so dismissing the claimant for this reason.
42. For these reasons, we find that the dismissal was unfair and we order the respondent to pay the claimant compensation made up as follows:
Basic Award
The claimant had 3 full years’ service at the date of dismissal, all over the age of 41. Her net pay was £146 and she is entitled to 1.5 weeks’ pay for each year of service, so the basic award will be calculated as £146 x 4.5 = £657.00
Compensatory award
Loss of earnings from date of dismissal (4 June 2010) to the date of hearing (14 June 2011) 53 weeks @ £146 per week = £7,738.00
The claimant is in receipt of Employment Support Allowance of £91.40 per week, so her ongoing loss is £54.60 per week. In considering future loss, we have taken into account the fact that the claimant has not been well enough to seek other work, in spite of attending course to which she was referred by her doctor and the SSA, and the difficulties currently experienced in finding work due to the present economic climate. We have decided that it would be just and equitable in these circumstances to award 78 weeks loss of earnings.
78 x £54.60 = £4,258.80
Loss of statutory rights = £500.00
Total award for unfair dismissal claim £13,153.80
This is a relevant decision for the purposes of the Employment Protection (Recoupment of Jobseeker’s and Income Support) Regulations (NI) 1996 as amended by the Social Security (Miscellaneous Amendment NO 6) Regulations (NI) 2010.
The full amount of the monetary award is: £13,153.80;
The amount of the prescribed element is: £7,738.00;
The dates to which the prescribed element is attributable are from 4th June 2010 to 14 June 2011;
The amount by which the monetary award exceeds the
prescribed element is: £5,415.80
This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (NI) 1990.
43. Was the claimant victimised contrary to Regulation 4 of the Employment Equality (Age) Regulations (NI) 2006?
The claimant’s case was that she was victimised by being dismissed by the respondent after she had brought an age discrimination claim against the respondent. As set out above, the first limb of the test applied in this case if to consider whether the claimant has carried out a protected act under Regulation 4. As she had brought a claim of age discrimination against the respondent, it is clear that she had indeed done a protected act. The second limb of the test is that the claimant must show that she has been less favourably treated than someone else in the same circumstances. In this case, the claimant said that she was less favourably treated than her colleague, Ezequiel in that he had matched up an order incorrectly with the result that a customer received the wrong clothes, but he was not dismissed as she had been. In fact, it was not clear to us whether Ezequiel was disciplined at all for what he did, but at most he received a written warning. We accept that in relation to the two initial “offences” for which the claimant was dismissed, she was less favourably treated than Ezequiel.
44. The third limb of the test, that of causation, can be the most difficult element of victimisation to prove. In this case, we believe that the timeline of events leading up to the claimant being disciplined and then dismissed is instructive.
45. The claimant brought a claim of age discrimination against the respondent following her hours being reduced in August 2009. The insurance estimate incident took place on 10 February 2010 and the respondent was aware of this within a few days of it occurring, but did not raise it with the claimant until the meeting of 8 March 2010. The cream jacket was accepted for cleaning by the claimant on 12 February 2010 and was discovered to be missing about a week later, when the respondent was told about it. Again, there was no further action until the meeting took place on 8 March. Following that meeting, there was no immediate follow up, until the claimant was suspended on 8 April. Given that the claimant’s age discrimination claim was heard by the Industrial Tribunal on 19 April 2010 and that the parties will usually be notified by Office of the Industrial Tribunals of the hearing date some weeks in advance, we believe that the respondent was aware of the date of hearing when he suspended the claimant on 8 April. He may even have been aware of the date when the meeting of 8 March 2010 took place. The claimant was dismissed on 4 June 2010, after a hearing from which she was absent due to illness and had an appeal hearing on 23 June 2010. The Industrial Tribunal’s decision on her age discrimination claim was promulgated on 24 June 2010, so it is fair to assume that the parties had received it by the time the outcome of the appeal was notified to the claimant by letter dated 2 July 2010. We are not concerned with whether the claim of age discrimination was successful or not, we are simply concerned with whether the claimant was victimised by reason of the fact that she had brought a claim against the respondent. However, taking account of the timing of the allegations of misconduct against the claimant, the fact that we believe those allegations were ill-founded (as we have set out above), the actual conduct of the disciplinary proceedings and their outcome, we believe that the core reason for the claimant’s dismissal was the fact that she had brought an age discrimination claim against the respondent. For these reasons, we are not satisfied that the respondent employer has provided an explanation for his actions which is innocent of age discrimination by way of victimisation.
46. As regards compensation for this matter, we have dealt with loss of earnings under the unfair dismissal claim and so the only other matter which remains is the issue of damages for injury to feelings. Given the unchallenged evidence given by the claimant on the distress she suffered as a result of the way she was treated, we take this part of the claim most seriously. The claimant said she had never been suspended from work before and that she cried all the way home on the day she was suspended. She was so demoralised by her dismissal that she had not had the confidence to seek alternative employment since her dismissal, because of the way she had been treated by her employer. She often spent the day in her pyjamas and said that she found it hard to go out of the house. The claimant had been examined by an independent doctor for the purposes of assessing her eligibility for Employment Support Allowance and his decision was that she was not fit for work. We accept that the claimant was a hardworking and conscientious employee, who had been working since she was seventeen. We would encourage the claimant to seek alternative work, as a means of restoring her self-esteem, but we appreciate the position in which she finds herself. All of these factors we believe place the value of this claim squarely within the middle range of damages as set out in Vento v The Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 and as updated in Da’Bell v NSPCC [2009] UKEAT/0227/09. Accordingly we order the respondent to pay to the claimant the sum of £10,000 in respect of injury to feelings.
47. This is a relevant decision for the purposes of Regulation 6 of the Industrial Tribunals (Interest on Awards in Age Discrimination) Regulations (NI) 2006 and we order the respondent to pay to the clamant interest on the amount awarded from 4 June 2010 (the date of dismissal) to the date of this decision at the rate of 8%, in the sum of £928.76.
48. Did the claimant suffer an unlawful deduction from her wages?
Given our findings of fact set out at paragraph 28 above, we accept that the claimant suffered unlawful deductions of wages in the sum of £65.00 and we order the respondent to pay the sum of £65.00 to the claimant.
49. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 13 and 14 June 2011, Belfast.
Date decision recorded in register and issued to parties: