Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

    

CASE REF:    682/11

 

 

CLAIMANT:                      Aine Cox

 

 

RESPONDENTS:              1.       ECJ Limited (t/a Clive Alexander Haircutters)

2.               Clive Johnston

3.               Eileen Johnston

 

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and is entitled to compensation of £3471.46 as calculated in the Schedule below.  The compensation to be paid by the first named respondent who was the employer of the claimant.

 

 

Constitution of Tribunal:          

 

Chairman:                        Mr S M P Cross    

 

Members:                        Mr B Hanna

                                        Mr A Kerr

 

 

Appearances:

 

The claimant was represented by her Father Mr T Cox.

 

The respondent was represented by Mr J Kennedy, Barrister-at-Law, instructed by Messrs Murphy & McManus Solicitors.

 

 

Findings of Fact

 

1.       The claimant who was born on 24 June 1989, commenced employment with the first named respondent on 3 December 2009.  She had previously qualified as a junior hairdresser and was employed by the first named respondent to assist the second named respondent, who was a well-known hairstylist in Enniskillen.  When the claimant was interviewed for the job it was agreed that she would start her employment at £100.00 per week with a review of the situation at Easter, when her progress in the post would result in a higher wage and more responsibility.  The claimant was keen to become a hair stylist in her own right as quickly as possible.  At first all went well and she was allowed to assist the second named respondent by washing hair and cleaning the salon, then later working with colours.  By April 2010, she was working with hair colours on a daily basis and was assisting with blow drying after the second named respondent had finished the cutting.

2.       The claimant was paid £100 per week for a 40 hour week.  This wage was beneath the national minimum wage.  Unbeknownst to the claimant, her father, who was aware of this breach of the law notified the authorities and as a result an inspection was carried out by Her Majesty’s Revenue and Customs, (HMCR), into the affairs of the first named respondent.  Before the inspection by HMRC, the claimant was informed by her father that he had notified the inspectorate.

 

3.       The first indication for the claimant that this inspection was about to happen was when she was asked by the third named respondent, to sign a contract of employment on 23 July 2010.  The claimant refused to sign this contract as she wanted first to show it to her father and to consider it.  This caused great annoyance to the third named respondent who was tasked with the job of organising the contracts for the firm and she tried to insist on the claimant signing there and then.  This, the claimant steadfastly refused to do until she had considered it further.

 

4.       The next day the claimant explained to the respondents that she was not prepared to sign the contract as drafted, as it had no provision for her training and development in it.  This she felt was most important as she wanted to be able to become a hairdresser in her own right.  She also stated that the contract did not make provision for a review of her wage, which had been agreed when she started to work for the respondents.  The fact that the claimant refused to sign this contract caused a great deal of annoyance to the second and third named respondent's who tried to insist on her signing the document.  Still, the claimant refused to sign.

 

5.       From that time onwards the claimant felt that she was treated differently from the other young assistants in the salon.  The conduct of the second named respondent towards her changed greatly.  He hardly acknowledged her presence certainly not in the way that he had done previously.  She was no longer encouraged to work with colours and assist the second named respondent as she had done before and was given more menial tasks such as cleaning the salon and even cleaning and dealing with an overflowing toilet which was continuously causing a problem.  The second named respondent did not speak to the claimant but issued instructions to her through a third party.

 

6.       The findings of the inspection team from HMRC lead to the first named respondent having to pay additional wages to the claimant who had indeed been underpaid.  The respondents appealed this decision without success.  The claimant was never moved from the basic position of training and as a result was not able to progress in her career.  All this caused her great annoyance and anxiety, and in September 2010 her father wrote a letter on her behalf, whilst she was on holiday, referring to the fact that certain reviews of her performance and skills were to have been carried out under the terms of her initial contract of employment agreed upon when she had started work.  The letter also referred to the refusal to sign the contract, detailing the reasons already mentioned.  No reply was received to this letter, and no improvement of the claimant’s working conditions or progress resulted.

 

7.       On 15 November the claimant wrote to the third named respondent stating that the hours of work shown on her pay slip were incorrect and asking for the error to be rectified.  She never received a response to this letter.  She did however receive a cheque for a sum of money but no explanation as to how it was calculated.  She tried to obtain information on this cheque but without success.

 

8.       Despite trying to get some improvement on her wages and progress in her development as a hairdresser, the claimant was unsuccessful.  She then wrote a letter to the respondents dated 27 November 2010.  She stated that nobody had ever complained about her work and she believed that she had honoured everything that she agreed to do when she commenced employment.  She continued to say that despite her efforts to get some progress in her position and in her wages, nothing had happened.  She therefore stated that she intended to resign her position at the end of work on 2 December.  The claimant left on that date and sought other employment.

 

9.       The claimant commenced these proceedings and in her statement of case alleged that despite the investigation of her pay, the respondents had failed to honour their contract with her, despite the fact that she told them that the reasons why she did not wish to sign the amended contract.  She referred to the letter of 1 September advising the respondent of her concerns about the contract.  The claimant also made other claims concerning arrears of salary and holiday pay but these claims have not been proceeded with.  The only claim being made by the claimant is for constructive unfair dismissal.

 

The Law

 

10.     The claimant claims that she has been constructively dismissed.  This situation arises when an employee can show to a tribunal that her employer has himself behaved in such a way as to entitle the employee to terminate the contract of employment.

 

Article 127 (1) of the Employment Rights (Northern Ireland) Order 1996 states as follows:-

 

          “For the purposes of this Part an employee is dismissed by his employer if …

 

          (a)      …

 

          (b)      …

 

          (c)      the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”

 

The employers conduct has to be examined by a tribunal for the tribunal to find that the conduct amounts to a repudiation of his contract with the employee.  The leading case in this area is Western Excavating (ECC) Limited v Sharp 1978 ICR 221.  In that case, Lord Denning stated that if the employer’s conduct went to the root of the contract and breached the contract in a significant way, or showed that the employer intended to be no longer bound to his contract, then the employee is entitled to consider herself no longer bound by the terms of the contract.  The subsequent ending of the employment contract is the fault of the employer and opens the door to the employee bringing a claim for constructive dismissal.

 

The employee must however act quickly in bringing the contract to an end and the employer’s conduct must be sufficiently serious to entitle her to bring the contract to an end.  The termination must be because of that conduct on the part of the employer.

11.     Before she can bring tribunal proceedings in a case of constructive dismissal, the claimant must have expressed a grievance to the respondent employer.  Under Part 2 of the First Schedule to The Employment (Northern Ireland) Order 2003, (the 2003 Order), Paragraph 6 it is stated that the employee who wishes to make a claim of this type in a tribunal, must first set out the grievance in writing and send it to the employer.  Unless the employee does this, she cannot successfully commence proceedings against her employer for constructive dismissal.

 

Decision

 

12.     To deal first with the question of whether the claimant complied with the Statutory Grievance Procedures the tribunal studied the two letters written to the respondents on 1 September and 27 November 2010.  The first letter was signed by the claimant’s father as she was on holiday when it was sent.  The second letter she signed herself.  The tribunal appreciate that the first letter should ideally have been signed by the claimant herself but it is prepared to accept that the letter was sent by the claimant’s father, acting on her behalf and with the claimants approval, she being away.  The first letter, although written some 3 months before she resigned her position, does set out the basis of the claimant’s complaints, namely that her pay did not comply with the National Minimum Wage and that she had been asked to sign a contract which did not address her particular concerns as to her career development, which had been promised by the second named respondent.

 

The letter of 27 November referred to the earlier meetings in August which lead to the letter of 1 September.  She again referred to the increase of her wages and the situation in the salon.  The tribunal consider that these 2 letters, when read together show that the claimant complied with the Statutory Grievance Procedure.  This procedure does not require that all the matters complained about have to be in one letter but can be comprised in a number of documents, as long as the time lapse is not unreasonable and as long as the matters complained of are still extant.

 

13.     The tribunal find that the respondents failed to deal with the matters set out in the letters and indeed, after the second letter, the claimant brought her employment to an end and it was no longer reasonably practicable for the parties to comply with the other requirements of procedure.  Thus with the letters of grievance having been received by the respondents; under Regulation 8 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (the 2004 Regulations), the parties are treated as having complied with the requirements of the Statutory Grievance Procedures.

 

14.     Having found that the claimant did comply with the said procedures, the tribunal considered the claim that the claimant was constructively dismissed.  The tribunal find that the claimant was promised, by the second named respondent, that she would be treated as his assistant to learn the trade, with a view to being reviewed in the spring, when she would be given a higher wage and would progress in her responsibilities, with a view to her ultimately having clients of her own.  This did not materialise and after the respondents continued to ignore her requests for consideration of her claims to them, to honour their agreement with her, the claimant decided to leave her employment.

 

15.     The tribunal find that not only did the second named respondent ignore the contractual rights of the claimant, but compounded the disappointment of the claimant, by trying to impose upon her a contract document which did not reflect the matters that the parties had agreed, at the start of the contractual relationship.  The respondents continued to pay the claimant her starting salary, which did not even meet the minimum wage.  The tribunal find that the claimant left her employment because of the failure of her employer to deal with her justifiable complaints, concerning the wage that she was paid and the failure of the respondents to deal with her justifiable claim, concerning her contractual situation.

 

16.     The tribunal award the compensation set out in the Schedule attached hereto.  The claimant was born on 24 June 1989, and was entitled to the gross wage of £4.92 per hour for her 40 hour week.  A gross wage of £196.80 per week.  The claimant was in receipt of Job Seekers Allowance of £56.25 per week from 2 December 2010 until she started a new job on 13 April 2011.

 

17.     The Employment Protection (Recoupment of Jobseekers Allowance and Income Support) Regulations (Northern Ireland) 1996 apply.

 

18.     Schedule of loss

 

          Basic Award

 

          The claimant was 21 years of age when she resigned.

          She is entitled to half one week’s pay at £196.80 per week    =                  £98.40

 

          Compensatory Award

 

          Loss of net wage from 2 December 2010 to 13 April 2011.

          18.71 weeks @ £172.22 per week                                       =          £3,223.06

 

          Loss of statutory rights                                                        =           £150.00

 

          Total compensation                                                              =          £3,471.46

 

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

 

 

 

 

 

 

 

Chairman:

 

Date and place of hearing:    25 July 2012, Belfast.

 

Date decision recorded in register and issued to parties: