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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Leonard v Roma Bernotiene and Freddie Ni... Roma Bernotiene and Freddie Ni... [2012] NIIT 01310_11IT (01 June 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/1310_11IT.html
Cite as: [2012] NIIT 1310_11IT, [2012] NIIT 01310_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 1310/11
1671/11
CLAIMANT: Diane Leonard
RESPONDENTS: Roma Bernotiene and Freddie Nixon, t/a City Lady
DECISION
The unanimous decision of the tribunal is that the claimant’s claims for sex discrimination and unfair dismissal are upheld.
Constitution of Tribunal:
Chairman: Ms P Sheils
Members: Mrs S Doran
Mr D Atcheson
Appearances:
The claimant appeared and was represented by Mr Sean Doherty of Counsel, instructed by Murnaghan Fee Solicitors.
The respondents appeared and were represented by Mr John Geary.
THE CLAIM AND THE DEFENCE
1. The claimant lodged a claim on 3 June 2011 for sex discrimination, unlawful deduction of wages and breach of terms and conditions.
2. The claimant subsequently lodged a second claim form on 22 July 2011 claiming unfair dismissal by reason of redundancy and breach of contract.
3. The respondent presented responses on 19 July 2011 and 31 August 2011 in respect of each of these claim forms denying all claims made.
SOURCES OF EVIDENCE
Witnesses
Claimant
4. The Tribunal heard from Ms Diane Leonard.
Respondents
5. The Tribunal heard from Ms Roma Bernotiene.
Documents
6. The Tribunal was given a bundle of documents containing the pleadings in the case, a statement of factual and legal issues and sundry correspondence, pay slips, etc.
7. The Tribunal was also furnished with a bundle of witness statements supplied by the claimant, Ms Roma Bernotiene and Freddie Nixon. The Tribunal did not take Mr Nixon’s statement into account given the fact that Mr Nixon attended the hearing and gave no indication of his desire either to give evidence or to have his written statement taken into account.
The Facts
There was a dispute between the parties on almost every factual detail in this case, from the date of the claimant’s employment through to the more substantive issues in the claims. The Tribunal heard and read the evidence of both parties and found the following facts as proven on a balance of probabilities.
Job Title
8. The claimant was employed by the respondents in a boutique clothing store in Enniskillen called City Lady. The respondents owned other similar shops in Newry and Cavan. For a long period of her employment the claimant and Ms Bernotiene enjoyed a friendly working relationship.
9. The claimant stated that the shop she had been employed by the respondents as the Manager of the Enniskillen and as Area Manager with responsibilities for the shop in Newry as well. She stated that this had required her to attend the shop at Newry when it was being first set up for a number of hours per week and thereafter once or twice a week. She stated that she was also responsible for the stock in Newry and for some staff duties on an on-going basis throughout her employment.
10. The respondents denied that the claimant had any area management title or responsibilities and that she had no responsibility for their shop in Newry. The respondents stated that the claimant had been of help at the Newry store when it first opened but denied that the claimant had had responsibility for the shop thereafter.
Claimant’s start date
11. There was also a dispute between the parties as to the dates of the claimant’s employment. The claimant contended that she commenced work with the respondents on 28 March 2009 until 15 June 2011 while the respondents contended that she had been employed by them from 29 June 2009 until 17 June 2011.
12. The claimant stated that she was quite clear that she had begun her employment on 28 March 2009 because she left a previous job in March to take up this employment and there was no gap between that employment and her new post with the respondents.
13. The claimant also stated that she was well aware of the fact that she had begun her employment in spring time and not during the summer of 2009. The claimant also stated that when she was dismissed by the respondents on 15 July 2011 the respondents had paid her two weeks notice.
14. To support their contention that the claimant had begun working for them in June 2009 the respondents sought to rely on a document entitled ‘Employee History Report (Details)’. It was clear that this document had been prepared for the Tribunal hearing as it was dated 12 January 2012. It was three pages long and each page purported to show payments made to the claimant from July 2009 to April 2010, April 2010 and April 2011 and April 2011 to June 2011.
15. The respondents submitted that this Employment History Report was evidence of the fact that the claimant had not begun her employment with them until 29 June 2009. However, it was subsequently agreed by the respondents that there were inaccuracies in how the document reflected the claimant’s pay and the Tribunal concluded that it was an unreliable document.
16. The Tribunal also took into account the fact that when they dismissed the claimant the respondents gave her two week’s notice. This was clearly based on two year’s service but if the respondents had only employed the claimant between 29 June 2009 and 17 June 2011 the claimant would not have completed two year’s service.
17. Therefore, the Tribunal concluded that the claimant started her employment on 28 March 2009 and that she had been dismissed on 15 June 2011.
The claimant’s rate of pay
18. There was also no agreement between the parties as to the claimant’s rate of pay or the manner in which she was paid. It was agreed however that up until March 2011 the claimant had been paid for tea and lunch breaks. Otherwise, the claimant contended that she worked 40 hours per week for £350.00 net per week. She stated that when she began her employment this was paid to her by cheque in the sum of £140.00 and cash in the sum of £210.00. She stated that this was an amount and an arrangement that had been reached between herself and the respondent Ms Bernotiene.
19. The respondents disputed this. Mrs Bernotiene stated that the claimant had worked 30.35 hours per week and that between June 2009 and February 2010 the claimant had been paid £350.00 per week gross, £278.50 net and that from 24 February 2010 to 4 February 2011 the claimant was paid £250.00 gross and £210.00 net.
20. Mrs Bernotiene stated that at the commencement of the claimant’s employment she agreed with the claimant to pay her a salary of £350.00 gross per week on the basis that the claimant would be responsible for paying her own tax on this income.
21. Mrs Bernotiene stated that some time after the start of the claimant’s employment she had been informed by her accountant that she was responsible for paying the claimant’s tax. At this point, Ms Bernotiene stated that she advised the claimant that she would deduct tax from her salary and that thereafter (from approximately February 2010) the claimant would receive a net payment of £278.50.
22. The claimant produced some payslips which supported her contentions and a copy cheque and bank deposit slip in the correct amounts. The Tribunal noted that the “Employee History Report” as referred to above with a commencement date of July 2009 purported to show that from that date the claimant was being paid £278.50. This clearly contradicted the evidence of Mrs Bernotiene as she had stated that this payment had only been made from in or about February 2010.
23. Accordingly the Tribunal found the claimant’s version, of how much and how she was paid, to be correct. The Tribunal took particular account of the fact that the documentation presented by the respondents was contradictory of the respondents’ own oral evidence.
Late January / Early February 2011
24. On 21 January 2011, the claimant discovered that she was pregnant. She continued to work as usual that week but was subsequently admitted to hospital on Sunday, 30 January 2011. The claimant was advised to rest for a week as there was a danger that if she did not do this she could suffer a miscarriage.
25 On 30 January, the claimant rang one of the respondents, Ms Roma Bernotiene and told her that she was pregnant, unwell and had been admitted to hospital. The claimant also asked Mrs Bernotiene for a few days off as the claimant had been advised by the doctor to rest for at least 10 days. The claimant stated that she would arrange cover for the shop.
26. The claimant contended that in this telephone call Ms Bernotiene had expressed annoyance at the claimant’s news and said that she was happy for the claimant as a friend but was not happy as an employer. The claimant stated that Ms Bernotiene was quite flippant throughout the call and, rather than demonstrate any concern for the claimant, made clear her feelings of unhappiness.
27. The claimant stated that during the week of 31 January to 3 February she received a number of telephone calls from Ms Bernotiene in respect of her work. The claimant stated that on 3 February 2011, Ms Bernotiene rang her and stated that she needed the claimant to open the shop on Friday. The claimant reiterated what she had told Ms Bernotiene on the previous Sunday that the doctor had said that she needed to rest or she could miscarry.
28. The claimant stated that Ms Bernotiene’s response had been offhand and that she had told the claimant that everything was perfectly normal and that “this happens to a lot of people”. The claimant stated that she felt under pressure to return to work and reluctantly agreed to return to work on the Friday on the understanding that she would be off work over the weekend.
29. Ms Bernotiene refuted the claimant’s statement that she had told Ms Bernotiene of her pregnancy on Sunday, 30 January 2011. Ms Bernotiene contended that the claimant had called her on 30 January 2011 and advised her only that she was sick and that she would be off for a couple of days. Ms Bernotiene stated that she had advised the claimant she was sorry to hear she was sick and had asked her to keep her updated as to her progress.
30. At first Ms Bernotiene stated that the claimant did not advise her of her pregnancy on either 30 January 2011 or 3 February 2011. Ms Bernotiene confirmed that she had telephoned the claimant on Thursday, 3 February but that there was no mention of the claimant’s pregnancy. Ms Bernotiene stated that she had enquired after the claimant’s health and queried when she would be returning to work. Ms Bernotiene stated that it was the claimant who had volunteered to return to work the following day and that she had queried if the claimant was certain about this and the claimant had confirmed she was.
31. Ms Bernotiene also refuted the claimant’s suggestion that the claimant had advised her of the risk of miscarriage. However, Ms Bernotiene accepted that she had used the expression that “this happens to a lot of people”, but stated that this comment was not made on Thursday, 3 February 2011, but at a date later when she became aware of the pregnancy.
32. Ms Bernotiene’s evidence on this point was at best confused. It was unclear from Ms Bernotiene’s evidence in her response or her witness statement when she had become aware of the claimant’s pregnancy. At this hearing she stated that the claimant had advised her of her pregnancy towards the end of or in the middle of February, when she had returned to work. When it was put to her that the claimant had returned to work on 4 February 2011 Ms Bernotiene agreed that the claimant had advised her of her pregnancy at this stage.
33. Further, when the claimant’s contention was put to Ms Bernotiene that she had expressed her unhappiness with the claimant’s news of her pregnancy, Ms Bernotiene stated that she had not been unhappy, that she had no reason to be unhappy as she had been advised by her accountant that the claimant’s pregnancy and subsequent maternity leave would cost her nothing. There was no detail in Ms Bernotiene’s evidence as to when she had had this discussion with her accountant.
34. In light of this evidence on this point the Tribunal accepted the claimant’s evidence that she had advised Ms Bernotiene of her pregnancy on the 30 January 2011.
35. On her return to work on 4 February, the claimant arrived at 8.55 am. She continued working until 8.00 pm that night as she and Ms Bernotiene covered the entire day which included late night opening.
36. The claimant stated that ordinarily on a long day like this there would have been a staff member working from 9.00 am to 5.00 pm, a staff member working 11.00 am to 7.00 pm or 8.00 pm and another staff member working from 5.00 pm to 9.00 pm. This was not disputed by the respondent, Ms Bernotiene, nor was it disputed that this additional cover had not been in place on this day.
37. The claimant stated that at no time during the working day did Ms Bernotiene ask her how she was feeling or enquire as to the reason for her absence. The claimant noted that this was very unlike Ms Bernotiene as there had previously been a good working relationship between them.
38. The claimant decided to broach the subject of her pregnancy and her need for maternity leave and pay and there ensued a heated argument between them. The claimant stated that Ms Bernotiene, reiterated that she was not happy, that she raised issues regarding her maternity entitlement and that she expressed very clearly her reluctance to keep open the claimant’s managerial position.
39. The heated discussion about maternity pay arose out of a misunderstanding on the claimant’s part. From discussions she had had with colleagues and friends in similar work positions the claimant believed that all employees were entitled to 90% of their pay for approximately six weeks and then statutory pay for approximately six months thereafter.
40. However during their conversation Ms Bernotiene made it clear that she would be paying the claimant only her statutory maternity pay entitlement and that the claimant could check the exact amount with her accountant.
41. When she mentioned her expectation of 90% pay for six months the claimant stated that Ms Bernotiene had become enraged, stated that she would not be paying even statutory maternity pay and expressed reluctance to keep the claimant’s job available for six months or to arrange maternity cover.
42. Ms Bernotiene stated that it had been the claimant who had become enraged and that the claimant had stated that she was aware of the amount of statutory maternity pay and that it was not enough and that the claimant would get the money off Ms Bernotiene one way or another.
43. The claimant accepted that she had been disappointed that she would only receive statutory maternity pay and stated that she had expressed her disappointment that this had not been previously agreed between them particularly as there were “no (other) perks” in the job. The claimant stated that Ms Bernotiene had retorted that the claimant got paid holidays and when the claimant had stated that all full time staff members were entitled to holiday pay Ms Bernotiene had said “I could have had two part-time members of staff instead of you, with no paid holidays, and got rid of you”.
44. The claimant refuted that she had threatened to get the money off Ms Bernotiene one way or another. After the discussion between them the claimant became upset and very distressed. She eventually left the shop in tears. The claimant stated that she had been very upset over the weekend and was concerned that the stress of the exchange between herself and Ms Bernotiene would cause harm to the baby.
45. It was clear to the Tribunal from Ms Bernotiene’s account of this discussion that it contradicted her own earlier evidence that she had not been aware of the claimant’s pregnancy before the middle or end of February 2011 and that she was fully aware of it during this discussion on 4 February 2011.
46 Accordingly the Tribunal accepted the claimant’s version of this event and also found that Ms Bernotiene had become aware of the claimant’s pregnancy at least by the 4 February and probably on 30 January 2011.
February 2011
47. The claimant returned to work on her 7 February 2011 and stated that she noticed that Ms Bernotiene’s attitude towards had changed and that she made life difficult for her in a number of ways. The first of these was the changes Ms Bernotiene made to the claimant’s wages.
48. On 10 February 2011 the claimant was making up the wages in Ms Bernotiene’s presence and it was agreed between them that the claimant had worked 11 hours in the previous week. Ms Bernotiene stated that she would be paying the claimant £8.50 per hour and made out a cheque for £93.50 accordingly.
49. The claimant protested at this and stated that her hourly rate was £8.75 net and that she was owed a day’s pay for her sick day. The claimant stated that Ms Bernotiene’s response was to say that she would now be paying the claimant £8.50 per hour and that she could sort out her own sick pay.
50. During the conversation that followed the claimant stated that Ms Bernotiene referred to “‘everyone’ being part time”. Previously the claimant understood that in such conversations between them the phrase “everyone” referred only to the other shop workers but on this occasion Ms Bernotiene made it clear that the claimant was included in this group and added that she, the claimant, would be “working 4 days from now on and be grateful for it, I could have got rid of you long ago.”
51. The claimant stated that she had told Ms Bernotiene that she intended to seek advice about the pay cut and the reduction in her working hours.
52. Ms Bernotiene’s version of this was that the claimant had complained to her that she was working too many hours and that she needed to be paid by the hour. Ms Bernotiene also stated that she and the claimant had agreed a new hourly rate of £8.33 per hour which had become effective from 4 February 2011.
53. However the Tribunal noted that none of this was reflected in the respondents’ Employee History and Report document and further noted that the respondent provided no provision.
54. The claimant stated that in mid February 2011 she and Ms Bernotiene had tried to discuss the claimant’s maternity provision in a more reasonable manner. The claimant accepted again that she realised that she would not be entitled to 90% of her wages but she was concerned about Ms Bernotiene’s refusal to pay her any statutory payments either.
Respondent’s change in attitude towards the claimant
55. The claimant stated that Ms Bernotiene appeared to backtrack on her earlier refusal to pay the claimant’s statutory entitlements. The claimant believed that the respondent’s change in attitude towards the claimant had only changed because the claimant had told her that she would be taking advice on the matter.
56. The claimant stated that from Ms Bernotiene’s knowledge of the claimant’s pregnancy Ms Bernotiene had made her life very difficult for her. The claimant stated that she felt like she was being bullied into leaving.
57. The claimant stated that Ms Bernotiene had become verbally abusive and threatening towards her, degraded her in front of customers and staff and removed various responsibilities from her which had formed part of her management role. She stated that Ms Bernotiene complained that she, Ms Bernotiene, was now having to do the greater part of the claimant’s work.
58. The claimant also stated that Ms Bernotiene made numerous threats towards her. These included telling the claimant that she would be working very much reduced hours in the future, that she would soon have to work Sundays and that she would not be getting any more holidays. Ms Bernotiene also threatened the claimant with demands for payment for tax that she told the claimant was owed by her in relation to her wages between March 2009 and February 2010.
59. The claimant also stated that during this time she was not allowed to do most of the managerial aspects of her role. For example she was stopped from accessing the record books and was no longer to deal with receipts or daily takings. She was also stopped from doing normal banking duties and had responsibility for keeping records in the cash book.
60. The claimant stated that it had previously been her role to do the staff rotas but that this function too was removed from her. Also where previously she had been accountable to both respondents for a daily update on the shops in Enniskillen and Newry she found herself excluded from the daily dealings with the Newry shop.
61. The claimant stated that the erosion of her duties placed her in a difficult situation with the staff who became confused about her role towards them. The staff perceived a change in the claimant’s role and found themselves unclear from whom to take instruction.
62. The claimant stated that she tried to continue working as normally as possible throughout this time but found it very difficult due to the change in the respondents’ attitude towards her. Previously the claimant had loved her job and had enjoyed a good and friendly working relationship with the respondents and Ms Bernotiene in particular.
63. The claimant stated that over and above her usual duties and outside her paid working hours she had accompanied Ms Bernotiene to trade and wedding fairs, had designed flyers and advertisements for the shops and had done numerous fashion shows in both the North and South of Ireland on behalf of the shops.
64. The claimant stated that she had been happy to do these things because she felt valued and well regarded by the respondents whom she said had told her repeatedly that they did not know how they would do without her.
65. When the claimant queried her new situation she was advised by Ms Bernotiene that she herself would be working more in the shop and did not answer the claimant more fully than this. However it was agreed between the parties that between 14 and 18 February 2011 the claimant had been tasked to train a newly recruited staff member, Joyce, and to advertise for another member of staff.
66. During this time it also came to the claimant’s attention that her wages were reduced in that she was no longer paid for tea or lunch breaks. The respondent stated that there was a rule whereby employees could choose either a 30 minute paid lunch break or take a 60 minute unpaid lunch break and that when she had discovered the fact that the claimant was being paid for a 60 minute lunch break she advised the claimant that she was in breach of the rule and that she could no longer have a 60 minute paid lunch break.
67. On 17 March 2011 the claimant stated that she and Ms Bernotiene had had a conversation in which Ms Bernotiene had suggested that to save money the claimant should move to cheaper accommodation. The claimant stated that Ms Bernotiene then suggested that the claimant should start work at eleven o’clock some mornings and collect SSP at the same time, so that the SSP money would “gather up” and the claimant would have it to spend during her maternity leave.
68. The claimant stated that when she refused to consider this proposition Ms Bernotiene had become enraged again and then demanded the alleged outstanding PAYE and said that if she did not pay this that Ms Bernotiene would send round Freddie Nixon to force the claimant to pay up. It was agreed that the claimant was also owed a week’s pay between 28 February and 6 March.
69. Ms Bernotiene denied all of the allegations about her treatment of the claimant and stated that the claimant had been allowed to continue with her job as before. She also denied that she had ever threatened the claimant herself or had suggested that Mr Nixon would exert force on her.
70. Ms Bernotiene accepted that the claimant had worked unpaid for hours over and above her working hours but stated that it had been the claimant who had insisted she do the advertisements in her spare time and stated that the fashion shows had been done by the claimant herself for charity events and that she had only provided the clothes. These allegations were denied by the claimant.
71. Ms Bernotiene accepted that there had been discussions between herself and the claimant in relation to the alleged owed unpaid tax. It was Ms Bernotiene’s contention that the claimant had agreed to pay this money back when she was “in funds” but that she had not done so despite Ms Bernotiene’s requests.
72. Ms Bernotiene stated that she had not treated the claimant less favourably because of her pregnancy and also stated that she and the claimant had remained friendly throughout this time.
March 2011
73. On 3 March 2011 the claimant attended her doctor who acknowledged that she was under stress at work and advised her to go off on sick leave at once for the sake of her own health and that of the baby’s. However the claimant was reluctant to take any time off work as she felt that she was being put under pressure to leave work anyway.
74. On 8 March 2011, when on a day’s leave, the claimant went to the CAB. She was advised not to accept cheques for monies less than her usual rate of pay in case this could be interpreted as her acceptance of the situation and was advised not to accept the proposed changes in her working hours. CAB also advised the claimant to reconsider her doctor’s advice and take time off on sick leave.
75. As a consequence the claimant did not receive wages from 11 February 2011 until some months later and further she did not receive her SSP entitlement until 15 April 2011 when she reported the matter to the relevant Department who in turn contacted Ms Bernotiene. This episode was not specifically denied by Ms Bernotiene.
76. On the morning of 9 March 2011 the claimant felt very unwell. She had not been able to sleep all night. She made a number of calls to Ms Bernotiene but got no reply. She eventually left her a voice mail message at 07.45 am saying that she was unwell, would not be coming into work and that she was going to go to the doctor’s and would be in contact with her later in the day. The claimant asked Ms Bernotiene to acknowledge safe receipt of her message.
77. The new staff member, Joyce, had been assigned to open the shop at 9.00 am. The claimant contacted Joyce several times during that morning to check that she was coping and to see if Ms Bernotiene had got her message. The claimant stated that Ms Bernotiene eventually rang her some several hours after her message to ask her if she would be returning to work the next day.
78. The claimant advised Ms Bernotiene that she would be collecting a sick note from her doctor and that she would deliver it to the shop. At this point the claimant stated that Ms Bernotiene said, “Enjoy your rest and don’t bother to leave the sick note in”. The claimant took further advice from CAB on this point and delivered the sick note anyway. This episode was not specifically denied by Ms Bernotiene.
Redundancy
79. On 16 March 2011 the claimant was hand delivered a letter at her home dated 11 March 2011 entitled “Revised Working Arrangements and Potential Disciplinary Matters”. This letter advised the claimant that there had been a significant downturn in the business of City Lady and of the respondent’s need to make significant cost reductions. The letter advised the claimant that these cost reductions would impact on staff hours and rates of pay and indicated that the respondents anticipated a significant cut in the claimant’s hours and rates of pay. It went on to add that the respondents anticipated that the claimant would also have to work at weekends.
80. The letter stated that before making any determination on changes to her work schedule or reduction in pay the respondents wished to consult with the claimant to see what she would be prepared to accept. The letter added that if she agreed to changes in her work schedule and pay she would have the right to a trial period of the new arrangements for a period of four weeks. The letter also stated that if the claimant would not be minded to accept any changes the respondents would have no alternative but to make her redundant.
81. The claimant replied on 21 March 2011 and stated that she had received the respondents’ letter while on sick leave with work-related stress that had caused a threatened miscarriage and that she was not prepared to accept any changes to her terms and conditions of service nor would she accept the respondents’ making her redundant. The claimant’s letter enclosed a further sick line and the claimant stated that the respondents’ letter had caused her additional stress and upset. The claimant added that she would be lodging a grievance within the next few days.
The Claimant’s Grievance
82. The claimant sent a letter of grievance dated 23 March 2011. This grievance letter raised the following issues: unlawful deduction of wages; changes to terms of conditions of employment and sex discrimination; less favourable treatment on the grounds of pregnancy including withdrawal of paid tea and lunch breaks where her colleagues were still in receipt of these; non payment of wages; non payment of SSP; reduction in hourly rate of pay; verbal abuse; threats in relation to alleged unpaid tax and retailing her own stock of fascinators on respondent premises in abuse of arrangement.
The Dismissal
83 The respondents replied to this letter of grievance by letter dated 26 May 2011, received by the claimant on 1 June 2011, in which they apologised for their delay in getting back to her and advised her that the respondents had had to restructure the business due to the economic downturn and had had to close the Newry branch of the business. The letter also advised the claimant that Ms Bernotiene had taken over the management of the shop and accordingly, as from 15 June 2011, her position as manager of Enniskillen had been made redundant.
84 The letter went on to offer the claimant an alternative position as a part time shop assistant, 20 hours per week at £6 per hour, as from 26 June 2011. This letter did not make any offer to consult with or meet the claimant to discuss the issue.
85. The claimant raised two subsequent grievances. The first was in relation to holiday pay owed to her for 14 days up to 31 March 2011 and holiday entitlement for the period after 31 March 2011. The second grievance raised was under the modified grievance procedure and was in relation to the termination of the claimant’s employment as conveyed to her in the letter of 26 March 2011. This second grievance alleged that the termination of the claimant’s employment was unfair and amounted to sex discrimination.
There was no further communication between the parties and the claimant lodged her claim form in July 2011.
86. The respondents accepted that they had not carried through their offer to meet the claimant as per their letter of 26 May 2011. However, Ms Bernotiene stated that that she had been afraid to contact the claimant further as the claimant had made it clear that the contact she was making with the claimant was causing her stress and upset. Ms Bernotiene also stated that members of the claimant’s family had come to her in the shop telling her to leave the claimant alone. The Tribunal did not accept this was a sufficient reason not to converse with the claimant and that the respondent has failed to correspond with statutory 93 procedure.
87. The Tribunal noted that the respondents produced no documentary or other cogent evidence at this hearing that recorded or explained the reasons for the various changes made to the claimant’s pay or working arrangements and also noted that Ms Bernotiene’s evidence was unclear and sometimes contradictory in this regard. The Tribunal also noted that the respondent’s did not challenge the claimant’s allegation that she had been the only staff member whose tea break had been deducted from their pay.
88. The Tribunal also noted that the respondents produced no documentary or other cogent evidence of the downturn or the extent of a downturn in the respondents’ business during 2011.
89. The Tribunal also noted that initially in her evidence at this hearing Ms Bernotiene accepted that she had recruited and appointed two new staff members in February 2011 but later stated that this evidence had been mistaken when it was put to her that such a level of staff recruitment was inconsistent with the claim of a “60% fall-off in business”, as per her witness statement.
Detriment
90. The claimant stated that from the outset Ms Bernotiene’s attitude towards the news of her pregnancy had caused her a great deal of stress and anxiety. She stated that it had exacerbated other difficulties she had experienced during the early stages of her pregnancy and that she had had further episodes of work-related stress causing her to take sick leave in April and May 2011. The claimant stated that she had supplied medical evidence of her condition to the respondents during this time which they did not challenge at the time or subsequently at this hearing.
91. The claimant also stated that she found life very difficult after her dismissal. She had previously worked for some time in the Erneside Shopping Centre (where the City Lady shop was based) and she had become reasonably well known. After her dismissal she found it difficult to go into the Centre as she could not come to terms with not going back to work. The claimant also stated that City Lady staff members and Ms Bernotiene told customers that the claimant was still on sick leave and that people were approaching her for details. Some even told her they thought she had lost the baby.
92. The claimant also stated that she had struggled financially throughout her pregnancy prior to and post her dismissal. She re-stated the fact that the respondents had caused delays in the payment of her SSP and her SMP, fact not challenged by the respondents and had withheld wages from time to time had caused her hardship. Eventually she had had to move house to one with a cheaper rent and had had to borrow money and access her credit cards to meet everyday needs.
93. The claimant stated that the pressures of her work, her dismissal and the financial difficulties she sustained ultimately caused her post natal depression. No medical evidence was supplied on this point.
Additional Issues
94. There were two discrete issues that had formed the basis of the respondents’ response to the claimant’s claims and which were also contained in the respondents’ witness statements. These issues related to the sale of fascinators by the claimant on respondent property and the unauthorised personal use by the claimant of shop stock. At this hearing the respondents decided not to pursue these issues but that was not before they had been substantially aired in the response and both witness statements.
Accordingly the Tribunal accepted the claimant’s denials of the allegations made against her in relation to both these issues.
The Law
Unfair Dismissal
95. Article 126 of the Employment Rights (Northern Ireland) Order 1996 provides an employee with the right not to be unfairly dismissed by his employer. Article 130 of the same order indicates that any dismissal of an employee is fair if the employer shows that the reason for the dismissal is a reason falling within Article 130.
96. Article 130 states at paragraph (2) a reason falls within this paragraph if it –
“(a) relates to the capability or qualifications of the employee performing work of the kind which 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 to work in the position which he held without contravention (either on his part or on that of his employer) of the duty or restriction imposed by or under a statutory provision.”
97. Article 130(4) states where the employer has fulfilled the requirements at paragraph 1, the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
“(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and
(b) shall be determined in accordance with equity and the substantial merits of the case.”
Article 130(A) of the same Order provides that an employee shall be regarded as dismissed where the statutory procedures (dismissals and disciplinary procedures) apply and where these have not been completed and where the failure so to complete them lies with the employer.
Sex Discrimination
98. The relevant law in this case is contained in the Sex Discrimination Northern Ireland Order 1976, the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 and relevant case law.
99. Article 3 of the Sex Discrimination Northern Ireland Order 1976 as amended by the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 provides:-
“(1) In any circumstances relevant for the purposes of any provision of this Order, other than a provision to which paragraph (2) applies, a person discriminates against a woman if —
(a) on the ground of her sex, he treats her less favorably than he treats or would treat a man, or.......”
Article 8 (ii) of the Order provides;
“(2) It is unlawful for a person, in the case of a women employed by him at an establishment in Northern Ireland to discriminate against her –
(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, by refusing or deliberately omitting to afford her access to them; or
(b) by dismissing her, or subjecting her to any other detriment.”
The Burden of Proof
100. The Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 inserts a new Article 63A into the Sex Discrimination Northern Ireland Order 1976:-
Article 63A provides;
“Burden of proof: industrial tribunals.
(1) This Article applies to any complaint presented under Article 63 to an industrial tribunal:-
(2) Where, on the hearing of the complaint, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent –
(a) has committed an act of discrimination against a complainant which is unlawful by virtue of part III, or
(b) is by virtue of Article 42 or 43 to be treated as committing such an act of discrimination against the complainant
the tribunal shall uphold the complainant unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.”
Case Law
101. The Tribunal has relied on the guidance by Lord Justice Peter Gibson in Igen Ltd and others v Wong (2005) IRLR 258 which clearly sets out the process by which the Tribunal approaches this reversal of proof. This is a two stage process where the claimant must prove facts from which the Tribunal could conclude there had been unlawful discrimination and if, or when, this is done, the burden of proof shifts from the claimant to the respondent. The respondent must then show that he did not commit the unlawful discrimination and that the treatment of the claimant by him was not related to her sex.
102. In particular the Tribunal considered the Court of Appeal’s guidance for the operation of this process. This Tribunal has set out fully that guidance to demonstrate the steps the Tribunal took in applying the law to the facts found in this case:-
· Pursuant to section 63A of the SDA, it is for the claimant who complains of sex 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 Pt II or which by virtue of section 41 or section 42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as 'such facts'.
· If the claimant does not prove such facts he or she will fail.
· It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that 'he or she would not have fitted in'.
· In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.
· It is important to note the word 'could' in section 63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.
· In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.
· These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the SDA.
· Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to section 56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.
· Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favorably on the ground of sex, 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 grounds of sex, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive.
· 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 is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.
· Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.
The Tribunal’s Conclusions
103. In light of the facts found and the application of the law in respect of them the Tribunal reached the following conclusions:-
Unfair Dismissal
104. The Tribunal concluded that the claimant’s dismissal was automatically unfair by virtue of the fact that the respondents did not comply with the statutory procedures.
The Tribunal did not accept that the reason for the dismissal of the claimant was redundancy. In reaching this conclusion the Tribunal noted the paucity of evidence provided by the respondents properly to demonstrate their changing business levels. The Tribunal also took into account contradiction to any alleged redundancy situation presented by the recruitment and retention of two new staff members just prior to making the claimant redundant.
The Tribunal concluded that the reason for the claimant’s dismissal was her pregnancy.
Sex Discrimination
105. The Tribunal concluded that the claimant had been both less favourably treated on the ground of her pregnancy while working for the respondents and that her pregnancy had been the reason for her dismissal.
106. In reaching this conclusion the Tribunal took into account that both parties agreed that prior to the announcement of the claimant’s pregnancy they had enjoyed a good personal and working relationship that changed overnight. There had been no issues between the parties prior to this and yet, as soon as the pregnancy became known, all manner of issues arose.
107. The Tribunal took into account the many deficiencies and inconsistencies in Ms Bernotiene’s evidence as noted above and found her evidence to be unreliable. This included her evidence in relation to the date on which she became aware of the claimant’s pregnancy, the amount and manner in which the claimant had been paid, her attitude towards and treatment of the claimant and ultimately the reason for her dismissal.
108. Accordingly the Tribunal accepts the claimant’s evidence and concluded that the allegations of less favourable treatment had been well founded and this treatment had been on the grounds of her pregnancy. The Tribunal orders the respondents to compensate the claimant in the terms set out below.
Unfair Dismissal
Failure to comply with statutory dismissal procedures:
|
Basic pay 400 x 4 |
= |
£1,600.00 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Compensatory Award |
|
|
|
|
|
|
|
Notice Pay |
= |
£700.00 |
|
|
|
|
|
Holiday Pay; 13 days at £70 |
= |
£910.00 |
|
|
|
|
|
Loss of earnings 28 February 2011 – 6 March 2011 |
= |
£350.00 |
|
|
|
|
|
Loss of earnings 15 June 2011 – 31 August 2011 |
= |
£3,850.00 |
|
|
|
|
|
|
|
|
|
Total |
= |
£7,410.00 |
Future Loss
The claimant’s representative claimed future loss as being the difference in pay between what the claimant had earned with the respondent’s and that which she earned in her new job, £60.00 per week, over a 52 week period.
However the Tribunal awarded this loss over only a six month period on the basis that the claimant had procured employment (albeit not as well paid) within a very short period of time. This gave the Tribunal some confidence that the claimant could secure better employment in recession times, within 6 months.
|
16 January 2012 – 17 February 2012 = 4 weeks x 230 |
= |
£920.00 |
|
|
|
|
|
20 February 2012 – 21 January 2013 = 22 weeks x 290 |
= |
£6,380.00 |
|
|
|
|
|
|
|
|
|
Total |
= |
£7,300.00 |
Loss of statutory rights
|
|
= |
£500.00 |
Injury to feelings
The claimant claimed an award which would fall into the “middle band” (vento). The Tribunal considered the relevant case law and concluded that the claimant should receive an award for injury to feeling to reflect not only the actual dismissal and loss of job but also the treatment sustained over the last four months of her employment. The Tribunal noted that this treatment caused the claimant serious upset and distress which was all the greater for her having been pregnant and in some danger of losing her pay.
Accordingly the Tribunal awards the claimant £11,000.00.
|
Total Award |
= |
£26,210.00 |
Uplift
The Tribunal concluded that a 50% uplift was appropriate in these circumstances where the respondent had failed to apply any proper procedure to the dismissal of the claimant never mind adhere to the statutory dismissal procedure.
Accordingly the Tribunal orders the respondents’ to pay the claimant the sum of £39,315.00.
Benefits
The claimant received benefits totalling £1,080.00.
|
Total award |
= |
£38,235.00 |
|
|
|
|
|
|
|
|
|
1. Loss of earnings |
= |
£7,410.00 |
|
|
|
|
|
2. Future loss |
= |
£7,300.00 |
|
|
|
|
|
3. Loss of statutory rights |
= |
£500.00 |
|
|
|
|
|
4. Injury to feelings |
= |
£11,000.00 |
|
|
|
|
|
|
|
|
|
Total before uplift |
= |
£26,210.00 |
|
|
|
|
|
Uplift |
= |
£13,105.00 |
|
|
|
|
|
|
|
|
|
Total |
= |
£39,315.00 |
Compensation
109. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (NI) 1990.
Chairman:
Date and place of hearing: 16 and 17 January 2012, Belfast.
Date decision recorded in register and issued to parties: