Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2013/1263_12IT.html
Cite as: [2013] NIIT 01263_12IT, [2013] NIIT 1263_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1263/12

CLAIMANT: Emma Patricia McNeill

RESPONDENTS: 1. Ryan Matthews, t/a Hair To Go

2. Hair To Go

3. Samuel Greer, Hair To Go

DECISION

The unanimous decision of the tribunal is that:-

(1) the employer of the claimant at the material time was the first respondent;

(2) the claimant’s claims against the second and third respondents are dismissed;

(3) the tribunal makes a declaration that the first respondent failed to give the claimant an itemised pay statement in accordance with Article 40 of the Employment Rights (Northern Ireland) Order 1996;

(4) the tribunal awards the sum of £558.96, pursuant to Article 27(3) of the Employment Rights (Northern Ireland) Order 1996, by reason of the breach by the first respondent of his duty to give the claimant a statement of employment particulars as required by Article 33 of the Employment Rights (Northern Ireland) Order 1996;

(5) the claimant’s claim, pursuant to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 and/or her claim of sex discrimination pursuant to the Sex Discrimination (Northern Ireland) Order 1976 are dismissed;

(6) the claimant’s claim of protected interest disclosure detriment, pursuant to Article 70B of the Employment Rights (Northern Ireland) Order 1996 is dismissed; and

(7) the claimant’s claim of Health & Safety detriment, pursuant to Article 68 of the Employment Rights (Northern Ireland) Order 1996 is well-founded, and the tribunal so declares and awards the claimant £750.00 compensation to be paid by the first respondent to the claimant.

The tribunal therefore makes a total award to the claimant to be paid by the first respondent in the sum of £1,328.96.

Constitution of Tribunal:

Chairman: Mr N Drennan QC

Members: Mr E Hesketh

Ms M J McReynolds

Appearances:

The claimant appeared in person and was not represented.

The respondents did not appear and were not represented.

Reasons

1.1 The claimant presented a claim to the tribunal on 9 July 2012. By letter dated 20 July 2012, she was informed by the tribunal her claim had been registered as a claim of sex discrimination; part-time working; and protected interest disclosure; Health & Safety detriment; right to receive particulars of contract; right to receive itemised pay statement; and that that part of the claim in respect of breach of contract had not been registered as it appeared from the claim form the claimant at the date of presentation of the claim form was still employed. Indeed, at the hearing, the claimant accepted she could not make such a claim in the circumstances, as set out in the said letter. Subsequently, following the termination of her employment, the claimant presented, on or about 15 July 2013, a further claim to the tribunal, which was given Case Reference No: 2014/12; but this was not before the tribunal at this hearing and was not therefore the subject of the Notice of Hearing for this hearing issued on 30 August 2012. The respondents and each of them did not present a response to the tribunal in respect of the claimant’s claims, the subject-matter of this claim.

1.2 Having heard oral evidence from the claimant and considered the documents provided by her to the tribunal, together with the oral submissions of the claimant, the tribunal made the following findings of fact, as set out in the following paragraphs, insofar as relevant and necessary for the determination of the claimant’s said claims.

2.1 The claimant was employed part-time in the business of Hair To Go at the first respondent’s premises from on or about 8 December 2011 and remained in such employment at the date of the presentation of her claim, as set out above. She obtained the said employment as a beauty manager, after answering an advertisement on Facebook following a discussion with the first respondent. Apparently the name of the third respondent was on the advertisement; but the claimant never met him, although she had some discussions with him on the telephone in the course of her employment. At all times material to this claim, the claimant was paid by the first respondent, not the third respondent, whether by way of cheque or cash. The bank account upon which the said cheques were drawn was in the name of the first respondent ‘Ryan Matthews t/a Hair To Go/ Ryan Matthews’ not the third respondent. The tribunal was satisfied the third respondent, who was employed in the Navy, outside the jurisdiction, was a partner of the first respondent but not in relation to the business of Hair To Go; but it was not satisfied, on the limited evidence before it, the third respondent was a partner in the said business and therefore employed the claimant at any material time. Although the tribunal believed the third respondent may, on various occasions, have given to the first respondent some financial and/or practical assistance and advice in relation to the business, it was not satisfied, on the evidence before it, any such involvement amounted to a partnership between the first and third respondent in relation to the said business. In these circumstances, the tribunal was satisfied the third respondent was not an employer of the claimant at the material time and therefore had no liability for any of the claims of the claimant. The second respondent was merely the trading name of the first respondent.

2.2 The tribunal therefore dismissed the claimant’s claim against the second and third respondents and proceeded to determine the claimant’s claim against the first respondent.

2.3 The tribunal, in evidence, acknowledged that, not without considerable difficulty in or about July 2012 she obtained any monies due to her from the first respondent on foot of her contract of employment with the first respondent, whether of earnings/holiday pay and/or sick pay.

2.4 The claimant, on her evidence to the tribunal, worked part-time for the first respondent for 22.5 hours (three days per week) at £6.08 per hour as Beauty Manager. The first respondent paid her £139.74 per week in arrears. This was a sum, which for reasons which were not able to be explained to the tribunal by the claimant, seemed to be in excess of the said rate of pay paid to the claimant by the first respondent, by £3.66. There was no doubt that, when the first respondent paid the claimant, whether in cash or by cheque, he failed, despite requests to do so, to provide to her any itemised pay statement. In light of the foregoing, although the tribunal was satisfied no such statement was given, it was not satisfied the first respondent, at any material time, had made any unnotified deductions from her said pay.

2.5 The claimant was not given, at the commencement of her employment, a statement of particulars of employment. At or about 17 May 2012, the first respondent handed to the claimant a document which purported to be the claimant’s contract of employment. It was not signed by the first respondent. In particular, it failed to give the full particulars as required, pursuant to Article 33 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’), including the name of the claimant and/or the start date of her employment and/or her proper job title/description. It provided for the rate of pay of £6.08 per hour but not the hours of 22.5 hours, as agreed. For example, it referred to ‘0 hours to a maximum of 42 (40)’ which was never agreed by the claimant with the first respondent and/or were never worked by her. Indeed, the tribunal is satisfied that this was a ‘standard type employment contract’ obtained by the first respondent sometime after the commencement of her employment; but which contained ‘standard type’ terms which were not relevant to the claimant’s employment and/or agreed with her by the first respondent. The claimant, not surprisingly, in the circumstances, did not sign the said contract nor was the contract document or her failure to sign ever raised again by the first respondent with the claimant, prior to the termination of her employment. The tribunal was therefore satisfied the first respondent was in breach of his duty to give to the claimant a statement of employment particulars, pursuant to Article 33 of the 1996 Order.

2.6 The tribunal was satisfied the claimant, a part-time worker, gave no relevant evidence of any less favourable treatment by the first respondent, in comparison to any comparable full-time worker relied upon by the claimant in relation to any offer of appointment to the first respondent; and indeed the claimant did not seriously dispute this during the course of her evidence. Further, the claimant acknowledged that any such comparator relied upon by her, who was offered such hours was a woman and therefore no issue of sex discrimination arose. However, the tribunal is satisfied that issues and others, such as those relating to contracts of employment, itemised pay statement meant the relationship between the claimant and the first respondent, were not good. The tribunal therefore dismissed the claimant’s claim of sex discrimination and/or part-time working.

2.7 In the course of her employment, as Beauty Manager, the claimant was also required to carry out, on occasions, spray tans in the salon for certain clients of the business. When she was required to do this work she had to do it in a small enclosed curtained off area/cubicle, without any proper ventilation system, using a manual airbrush spray-on tanning system. However, the tribunal accepts that she frequently coughed up spray tan due to the enclosed space and lack of ventilation, as did some clients. It further accepts, due to the small space and lack of ventilation, there was a constant mist in the area, as the spray tan was put on the clients, which the claimant had to breathe in, which she found most unpleasant, and believed to be injurious to her health in the circumstances,. The claimant was not provided with any protective clothing, such as a face mask, in order to carry the said work. The tribunal is satisfied the claimant, on a number of occasions, asked the first respondent to obtain a proper ventilation system and/or a face mask. It is also satisfied that by requiring her to work in the said conditions, she believed it was harmful or potentially harmful to her health to work in such conditions. She also supported Ms Potts, the Nail Technician, when she made similar complaints to the first respondent. In response, the first respondent questioned the costs of providing such ventilation and/or face masks and, on other occasions, he said ‘he would sort it out’ but never did so during the period of the claimant’s employment. The tribunal has no doubt that by requiring her to work in such conditions, the claimant became anxious and upset when she was required to apply spray tans in such conditions, and, in particular, when the first respondent ignored her requests and took no action, albeit it involved her health. The tribunal noted that Ms McNeill, after the claimant had left her employment, had made enquiries about the issue of ventilation from her Local Council’s Environmental Department, who supported the remedy of such a ventilation system; and/or use of face masks; but it also noted it did not take any further action itself and/or inspect the premises. Ms McNeill informed Ms Potts, the Nail Technician, of her enquiries and the result of them, as set out above.

3.1 Under Article 70B of the 1996 Order it is provided:-

“(i) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act by his employer done on the ground that the worker has made a protected disclosure.”

Under Article 67B(1) of the 1996 Order it is provided:-

“ ... a ‘qualifying disclosure’ means any disclosure of information which in the reasonable belief the worker making the disclosure, tends to show one or more of the following –

…

(b) that a person has failed, is failing, or likely to fail to comply with any legal obligation to which he is subject;

…

(d) that the health or safety of any individual is being or is likely to be endangered.”

Under Article 67(c) of the 1996 Order it is provided:-

“A qualifying disclosure is made in accordance with this Article if the worker makes the disclosure in good faith –

(a) to his employer.”

3.2 Under Article 68 of the 1996 Order it is provided:-

“(1) An employee has the right not to be subject to any detriment by any act, or any deliberate failure to act, by his employer, done on the ground that –

…

(c) being an employee at a place where –

(i) there was no such representative or safety committee, or

… he brought to his employer’s attention, by reasonable means, circumstances connected with his work, which he reasonably believed were harmful or potentially harmful to health or safety.”

3.3 In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, a sex discrimination case, Lord Hope, at Paragraph 35 of his opinion said:-

“35 But once this requirement is satisfied the only limitation that can be read into the word is that indicated by Lord Brightman. As he put it in Ministry of Defence v Jeremiah [1980] 1 QB 87, one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to a detriment and it is not necessary to demonstrate some physical or economic consequence.”

3.4 In relation to a claim for detriment, if found by the tribunal to be well-founded, the tribunal is required to make a declaration to that effect and may award compensation, such as the tribunal considers just and equitable having regard to the infringement to which the complaint relates and any loss which are attributable to this act, or failure to act, which infringed the claimant’s right (see Article 71 and 72 of the 1996 Order). It has long been recognised such an award can include an award for injury to feelings (see Virgo Fidelis Senior School v Boyle [2004]. IRLR 268).

3.5 To establish there has been an ‘protected disclosure’, as Underhill P in the case of Easwaran v St George’s University of London [2010] UKEAT/167/10 suggested, it is necessary to show:-

“(1) Did the worker disclose information?

(2) If so, did the worker believe that the information tended to show at least one of the relevant failures?

(3) If so, was the belief reasonable?”

In relation to the first element – disclosure of information – issues have arisen in case law whether a bare allegation or an expression of concern as to a relevant failure involves a disclosure of information. In the leading case of Cavendish Monroe Professional Risks Management Ltd v Geduld [2009] UKEAT/0195/09 the EAT confirmed that to make a protected disclosure it was necessary to disclose information about a situation, ie by conveying the facts, which was different from making an allegation or merely stating a position. The distinction between an allegation/expressing an opinion and/or statement of position and a disclosure of information, as required, as set out above, can often be difficult to determine. Merely raising a grievance is thought to be insufficient (Smith v London Metropolitan University [2011] IRLR 884).

3.6 There has been considerable debate in the legal authorities as to what constitutes a ‘legal obligation’, as set out in Article 67B(1)(b); but, as seen in Parkins v Sodexho Ltd [2002] IRLR 109, this has been given a very wide meaning and includes any legal obligation owed to the worker under his contract of employment. In light of the decision in this matter (see later) it was not necessary for the tribunal to consider this issue further. However, if it had been necessary to do so, the tribunal, in any event, would have found the claimant was entitled to rely on Article 67B(1)(d), in the alternative, of the 1996 Order – namely health or safety of an individual has been or is likely to be endangered.

3.7 Although the tribunal is satisfied on a number of occasions the claimant raised with the first respondent the issues of the absence of ventilation and face masks/protective clothing, when she was required to carry out spray tans in such a small unventilated area, and that she was coughing up spray tan, as were clients of the salon, it was not satisfied, on the evidence, she expressed it in such a way to the first respondent as would satisfy the test in Cavendish Monroe. She did not disclose information in the manner required and, in the view of the tribunal expressed an opinion, made an allegation which was not sufficient in the circumstances. The fact she raised a grievance with the first respondent was not sufficient in the circumstances (Smith v London Metropolitan University). Therefore the tribunal was not satisfied the claimant had made a protected disclosure for the purposes of her claim under Article 67B(1) – 70B of the 1996 Order; and it must be dismissed. However, as set out below, the claimant had an alternative claim, which indeed had been more particularly addressed by the claimant in her claim form and evidence. Indeed, in the course of her evidence the claimant seemed unaware such a claim of protected disclosure had been made by her despite assuring the tribunal she had drafted the claim form.

3.8 However the tribunal is satisfied that the claimant’s claim under Article 68(c) of the 1996 Order (Health & Safety detriment) is well-founded. On the basis of the facts, as found by the tribunal, as set out above, it was satisfied there was no safety representative or safety committee at the first respondent’s premises. It was further satisfied, when the claimant complained of the lack of ventilation and/or absence of face mask/protective clothing, when she was required to carry out spray tans, in such a small unventilated area, she did so politely and appropriately. Further, given she was coughing spray tan and there was a mist of spray tan in the enclosed area when carrying out the spray tan, she had reasonable grounds to believe that these conditions were harmful to her health or potentially harmful to her health; and that by so exposing her and doing nothing about it, the claimant suffered a detriment, which continued to the end of her employment. The tribunal was not satisfied, on the evidence before it, the spray tan chemicals used by the first respondent were carcinogenic, as claimed by the claimant; but, in light of the foregoing, it was not necessary to do so. To have reached such a conclusion, the tribunal would have required some additional expert evidence about the precise chemicals used in the spray tan and their carcinogenic qualities, if any.

3.9 The tribunal is satisfied the claimant had to carry out spray tans on frequent occasions during her short period of employment with the first respondent. It further accepts she had some upset and anxiety when the first respondent took no action to remedy the situation and she therefore suffered injury to her feelings. It was difficult to assess this on the claimant’s evidence and to what extent the injury to feelings was influenced by the first respondent’s failure to act upon the claimant’s complaints relating to the spray tan issue. However, the tribunal, although it accepted there were other difficulties, as set out above, in the claimant’s relationship with the first respondent, at the material time, it accepted his failure to take any action upon her complaints about the spray tan issue was a material influence on the injury to feelings suffered by her as a result (see further NHS Manchester v Fecitt [2011] EWCA Civ 1190 – a protected disclosure case). The tribunal therefore concluded a proper award would be £750.00, given the short period of her employment and the fact that her duties did not involve the giving of spray tans at all times during the period of her employment. It decided any award must therefore fall at the bottom of the Vento guidelines, as amended, in Da’Bell v NSPCC [2010] IRLR 19

4.1 The first respondent, having been in breach of his duty, pursuant to Article 33 of the 1996 Order to give a statement of employment particulars to the claimant, it was necessary for the tribunal to consider whether the claimant was entitled to any award pursuant to Article 27 of the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’).

4.2 Insofar as relevant and material Article 27 of the 2003 Order provides:-

“(1) This Article applies to proceedings before an industrial tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule 4.

…

(3) If in the case of proceedings to which this Article applies –

(a) the industrial tribunal makes an award to the employee in respect of the claim to which the proceedings relate, and

(b) when the proceedings were begun the employer was in breach of his duty to the employee under Article 33(1) … of the Employment Rights Order,

the tribunal shall, subject to Paragraph (5) increase the award by the minimum amount and may, if it considers it just and equitable in all the circumstances increase the award by the higher amount instead.

(4) In Paragraphs … or (3) –

(a) references to the minimum amount are to an amount equal to two weeks' pay, and

(b) references to the higher amount are to an amount equal to four weeks' pay.

(5) The duty under Paragraph … or (3) does not apply if there are exceptional circumstances which would make an award or increase under that paragraph unjust or inequitable.”

4.3 The tribunal was satisfied the claimant’s claims were listed in Schedule 4 of the 2003 Order. The tribunal was satisfied that it was just and equitable in the circumstances to increase the award for the first respondent’s said breach of his duty by the higher amount. It considered the failure of the first respondent to provide a statement of employment particulars, pursuant to Section 33 of the 1996 Order was inexcusable and reflected his general failure to follow good employment practices and his statutory obligations in relation to pay and conditions of service. The tribunal can see no exceptional circumstances which would make an award or any such increase unjust or inequitable.

4.4 The tribunal therefore made an award, pursuant to Article 27 of the 2003 Order, in the sum of £558.96 (4 x £139.74).

5.1 The tribunal therefore, in light of the foregoing, made the decisions, as set out above, and awards the claimant the total sum of £1,328.96 by way of compensation to be paid to her by the first respondent.

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

5.3 This is a decision to which the Recoupment Regulations do not apply.

Chairman:

Date and place of hearing: 30 October 2012, Belfast

Date decision recorded in register and issued to parties: