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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Hylands v Catherine Murphy and Shane Mur... [2013] NIIT 00131_13IT (28 October 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/131_13IT.html
Cite as: [2013] NIIT 131_13IT, [2013] NIIT 00131_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 131/13
CLAIMANT: Hayley Davina Hylands
RESPONDENTS: Catherine Murphy and Shane Murphy, t/a Oaktree Day Nursery
DECISION
By a majority the tribunal has found that the claimant was not unfairly dismissed by reason of her pregnancy but fairly dismissed by reason of her gross misconduct. Consequently, her claim is dismissed.
Constitution of Tribunal:
Chairman: Ms W A Crooke
Members: Mrs B Heaney
Mr J Smyth
Appearances:
The claimant was represented by Ms R Best, Barrister-at-Law, instructed by the Equality Commission.
The respondents were represented by Mr S Murphy.
SOURCES OF EVIDENCE
1. The claimant gave evidence on her own behalf. On behalf of the respondents, evidence was given by Mr Shane Murphy and various witness statements given by Mrs Catherine Murphy and other members of staff which were given weight by the majority insofar as they corroborated oral evidence given in the hearing by Mr Shane Murphy on behalf of the respondents. The claimant gave evidence on her own behalf.
2. There were also three bundles of documents before the tribunal. These were not agreed and reference will be made to this in the section of this decision relating to the issue of costs.
THE CLAIM AND THE DEFENCE
3. The claimant claimed that she was unfairly dismissed from her employment with the respondents and that she had suffered discrimination as a result of her pregnancy. The respondents denied this, contending that the claimant was fairly dismissed on account of her gross misconduct.
THE RELEVANT LAW
4. The relevant law relating to unfair dismissal is found in the Employment Rights (Northern Ireland) Order 1996 and in particular Articles 130 and 131.
5. The law relating to discrimination on account of pregnancy is found in the Sex Discrimination (Northern Ireland) Order 1976.
ASSESSMENT OF EVIDENCE
6. The majority preferred the evidence given by Mr Shane Murphy to that given by the claimant. They considered that his evidence was more structured and credible while in comparison, the evidence of the claimant about various events changed a number of times and became somewhat inconsistent.
THE FACTS
7. (1) The respondents operate a day nursery for the care of children. Mr and Mrs Murphy are partners in the nursery and while Mrs Murphy had a hands-on day-to-day managerial role in childcare side of the business, Mr Murphy was more involved in the administrative side of the business dealing with such matters as accounting, preparation of PAYE records and issues relating to premises. In short, he had general management oversight of the respondents’ business.
(2) The claimant was engaged to work for the respondents as a nursery room leader commencing on 2 October 2012. The claimant’s actual contract of employment described her as “nursery leader”. Her employment was subject to completion of a satisfactory probationary period of six months. Approximately one day after the claimant commenced employment with the respondents she had it confirmed that far from being incapable of having children as she had previously believed, she was pregnant with twins.
(3) After the claimant told the respondents that she was pregnant on 3 October 2012, her version of the reaction to this news was that Mrs Murphy said she would have to check the situation with her husband (Mr Murphy) to see if the claimant could remain in employment with them. The respondents’ version of events was that they congratulated the claimant. The majority preferred the respondents’ version of events as they accepted that the respondents had no reason to dismiss a person on the grounds of pregnancy. They accepted the respondents’ argument that contrary to the claimant’s contention that her departure on maternity leave would disrupt the children, the children would, as a matter of course, have been moving on out of the care of the claimant after a period of six months anyway. Furthermore, they accepted the respondents’ argument that it was more likely than not that the claimant’s pregnancy would result in extra business for the nursery, as the claimant would send her children to the nursery of the respondents.
(4) On 5 October 2012, the claimant said that Mrs Murphy called her to the office for induction purposes. She said Mrs Murphy also told her that she had spoken to Mr Murphy and as a result she was to be kept on as she was a good worker and they needed her. This was denied by Mr Murphy on the basis that this could not have been said by Mrs Murphy as it had never been raised with him. The majority accepted that a meeting took place on 5 October 2012 for the purpose of the induction but did not accept the claimant’s version of events concerning the discussion of her pregnancy.
(5) On 8 October 2012 the claimant alleged she was again called to the office by Mrs Murphy who allegedly told her things had not been working out since she had told them of her pregnancy and that her room assistant, Sinead Wilkinson, had complained to Mrs Murphy that she felt under pressure largely from the children not listening to the claimant. The claimant alleged that she told Mrs Murphy she did not want Sinead to feel that she was stepping on her toes and that she had been bullied in her previous employment. Mr Murphy alleged that this conversation did not happen for two reasons:-
(a) that Mrs Murphy did not work on a Monday; and
(b) he was there in the office all day doing wages so he would have been witness to the conversation if it had happened.
As a result of his contentions the majority accepted that no such meeting took place.
(6) On 9 October 2012 the claimant was called to the office to discuss an issue regarding toileting of child R (on her version of events) but later accepted by the claimant to be child C, and other performance issues. The claimant had been left alone for a period as her room assistant, Sinead Wilkinson, had been out of the room for a period. As a result she was under pressure from child C to let the child use the potty. She allowed the child to walk across to the door of the toilets (opposite Room 4) while she watched from the doorway of her room. This was discovered by Michelle Gordon, a manager in the nursery, who reported it to Mrs Murphy.
(7) The claimant was absent on 10 October 2012 and 11 October 2012 due to illness. She alleged that she was called in to the office on 12 October 2012 by Mrs Murphy to talk about her sickness. On the same day the claimant stated that Michelle Gordon gave her an orange folder containing, amongst other things, her contract of employment and that her return to work interview took place on 12 October 2012. The majority consider that the respondents’ version of events was more convincing as the claimant claimed that Michelle Gordon had handed her the folder on a day when Ms Gordon was not at work. More tellingly, the claimant had countersigned the return to work interview as occurring on 15 October 2012.
(8) On 15 October 2012 the claimant alleged that Mrs Murphy and Ms Gordon never spoke to her “but gave her dirty looks” when they met her in the corridor. The majority consider that this is more likely than not to be untrue as Mrs Murphy did not work on a Monday.
(9) The claimant again alleged that Ms Gordon did not acknowledge her on 17 October 2012. Furthermore on 18 October 2012 she had difficulty in getting Ms Gordon and Mrs Murphy to agree to her having time off for a flu injection.
(10) On 19 October 2012 the claimant was toileting two children (F) and (E) in the toilets opposite Room 4 in which she worked, and child F who had finished first was determined to return to Room 4 but child E was not ready to do so. The claimant allowed child F to leave the toilets and watched him cross the corridor and (on her version of events) pushed open the door of Room 4 and take approximately three steps into the room. This version of events was contradicted by a fellow worker called Angela Lavery, who said she found child F in the corridor outside Room 4. In the appeal transcript at page 4 the claimant said that she thought that child F had gone into the room contrary to her previous version of events that she had witnessed child F go into the room. The majority accepted that the respondents’ version of events was more likely than not to be true on the balance of probabilities as they considered it unlikely that a young child would have been able to push open a heavy fire door. Neither did they accept the claimant’s claim that the door to Room 4 was not fully closed. The claimant did not dispute that the door to Room 4 was a self-closing door.
(11) A short time later on 19 October 2012 the claimant was called to the office. The respondents contended that she was aware she was going into a disciplinary investigation as she had been handed a completed investigation invitation template. As no copy of this was made available in evidence, and Mr Murphy only provided a blank template on the day after this was queried in the hearing, the tribunal had reservations about whether this was really true. What was clear from the evidence was that without any break between them the “investigation” merged seamlessly into a disciplinary hearing at which the claimant was summarily dismissed for gross misconduct in leaving a child unattended.
(12) There was an appeal against the claimant’s dismissal which was heard by Mr Murphy on 6 November 2012 and a letter of the same date confirming the decision was upheld was sent to the claimant.
(13) In operating the process of the claimant’s disciplinary procedure there was very little adherence to the statutory dismissal procedures. There was no written statement of the misconduct; only a very short period of time elapsed after the event happened before the claimant was called into the office (on the respondents’ own evidence); there was no evidence of a right of accompaniment being given and no evidence of the specific allegations and evidence they were based upon being provided. The investigation meeting became one with the disciplinary hearing without the claimant being given any opportunity to consider her position. No outcome letter was issued as a result of the hearing. The claimant was allowed an appeal however, even though she had lodged her appeal outside the time-limits of the respondents’ disciplinary procedure.
CONCLUSIONS
8. The majority of the tribunal accepted that the respondents have discharged their burden of proof of proving the reason for the claimant’s dismissal as being her gross misconduct in leaving a child unattended. Article 130 of the Employment Rights (Northern Ireland) Order 1996 states as follows:-
“(1) In determining for the purposes 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) A reason falls within the paragraphs if it:-
(a) relates to the capability or qualifications of the employee for performing work of a kind which he was employed by the employer to do;
(b) relates to the conduct of the employee, …”
9. Article 131 of the same order states as follows:-
“(1) an employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if:-
(a) the reason (or, if more than one, the principal reason) for the dismissal is that she is pregnant or any other reason connected with her pregnancy…”
10. The majority considered that the respondents had a belief that the claimant committed the alleged gross misconduct as outlined in the disciplinary procedure, Appendix 2. The majority considers this was a reasonable belief, as not only was this witnessed by another member of staff, but the claimant accepted that the incident had happened. As a person with childcare qualifications, she admitted it would be gross misconduct to leave a child unattended.
11. The majority considered that this was a case in which the facts were so clear that very little investigation was needed, but noted that Mr Murphy did, at the appeal stage, investigate the claimant’s contention concerning the closure of the door to Room 4 and found that it was closing properly and therefore incapable of being pushed open by a young child. The majority also believed that as this case concerned the safety of a child, dismissal was within the band of reasonable responses open to a reasonable employer facing the circumstances pertaining at that time.
12. In relation to the claimant’s claim that she had been unfavourably treated on the grounds of her pregnancy, the majority considered that she had not discharged her primary burden of proof in proving such facts from which the tribunal would be able to infer that discrimination had occurred. As she had not done so, the burden of proof did not pass to the respondents to prove that the treatment the claimant underwent was in no way on account of her pregnancy.
THE MINORITY DECISION
13. The minority of the tribunal considers that it is settled law that actual overt evidence of discrimination is nearly always hard to find. In reaching its decision it has particularly relied on Article 63A of the Sex Discrimination (Northern Ireland) Order 1976 which says as follows:-
“(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 the complainant which is unlawful by virtue of Part III; or
(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination… against the complainant, the tribunal shall uphold the complaint 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.”
14. The tribunal found it significant that the only evidence given on behalf of the respondent was given by Mr Murphy, who could only give direct evidence about the appeal hearing, the rest of his evidence rested on hearsay and written statements. As such, the minority considered that no weight should be placed on anything other than Mr Murphy’s direct evidence and had reservations over the weight to be assigned to that evidence.
15. The primary facts that the minority considers relevant are as follows:-
(a) On the day after the claimant commenced employment with the respondents, she returned from her hospital appointment and told them she was pregnant.
(b) Sixteen days thereafter, the claimant was summarily dismissed.
(c) (1) the claimant was not told what the meeting with Mrs Murphy was about or its purpose;
(2) the claimant was not informed of her right to have accompaniment by a fellow employee or a Trade Union representative;
(3) the claimant was not informed in advance of the charges against her;
(4) the allegations against the claimant were not provided to her in writing;
(5) the claimant was not provided with any evidence against her in advance of the meeting for her to consider it and prepare her case;
(6) there was no investigation by Mrs Murphy prior to dismissal;
(7) there was a meeting which lasted approximately ten minutes whereby at the end of it the claimant was dismissed without notice;
(8) the claimant was neither given written confirmation of dismissal which detailed the reasons for her dismissal nor the right to appeal the dismissal. The respondents even alleged the claimant breached the disciplinary policy in not appealing her dismissal within three days.
(9) a blank template on which the allegations against the claimant “would have been provided” was produced to the tribunal only after the tribunal raised the question of whether there was any issue relating to procedural unfairness.
16. Only during the hearing did the respondents contend that the claimant was subjected to the disciplinary investigation meeting on 16 October 2012 and it was not put to the claimant that she had been given the blank documentation on 16 October 2012. In the appeal hearing there were inconsistencies between the statements of Angela Lavery and Sinead Wilkinson which were accepted without question with the claimant’s account being dismissed.
17. There was no investigation of the claimant’s contention that her pregnancy was the reason why she had been dismissed.
18. The Appeal Hearing was recorded by the respondents without telling the claimant in advance.
19. It is the decision of the minority that this list of primary facts enables the tribunal to draw an inference that the case against the claimant was a hastily put together manipulation to put forward a case that the claimant was dismissed for gross misconduct. As the minority of the tribunal has already expressed the views that no weight should be attached to the “witness statements”, it is left with the direct evidence of the claimant that she suffered the treatment of which she complained - the almost immediate suggestion that her job was in jeopardy once the claimant informed the respondents of her pregnancy, the cold shouldering, the constant monitoring to the point where the claimant felt she could do nothing right, the failure to give her due process and the “cobbled” together dismissal.
20. In
the case of Igen v Wong [2005] IRLR 258 CA, a two stage
test was set out to deal with the burden of proof. The first stage requires
the claimant to prove facts from which the tribunal could conclude in the
absence of an adequate explanation that the respondent has committed, or is to
be treated as having committed, the unlawful act of discrimination against the
complainant. The second stage requires the respondent to prove that he did not
commit or is not to be treated as having committed the unlawful act, if a
complaint is not to be upheld. The issue that has further influenced the
minority of the tribunal to consider that the respondents dismissed the
claimant on the grounds of pregnancy was the conduct of Mr Murphy
throughout the tribunal case from the date of the Case Management Discussion
being 19 June 2013 to the intimidatory manner in which he framed his
closing submissions to the tribunal. From time-to-time his allegations verged
on the
far-fetched. For example, at paragraph 12 of the Case Management
Discussion of 19 June 2013:-
“Mr Murphy indicated that he doubted whether the claimant would attend on 2 July to pursue her claim. He therefore sought a deposit to ensure her attendance”.
The claimant attended throughout the main hearing. Shortly after the commencement of the claimant’s cross-examination he took issue with the claimant’s knowledge of her pregnancy before she attended the hospital on 3 October 2012. He repeatedly put it to her that she was lying in her evidence, at one stage even going to the length of alleging that her contention that she was dismissed because she was pregnant had been suggested to her by her by a Citizens Advice Bureau adviser. There was no evidence to support these allegations. It was undoubtedly open to Mrs Murphy to give evidence to counter the claimant’s allegations as, on the claimant’s case, she was the principal discriminator. She did not do so and there did not appear to be any reason to the tribunal why she did not do so, as she was present throughout the case, even at one stage alleging “unprofessional conduct” on the part of the claimant’s representative.
21. For all of the foregoing reasons the minority considers that it is justified in drawing the inference that the claimant was dismissed by the respondents by reason of her pregnancy and the respondents should be treated as having committed the unlawful act of discrimination against the claimant. At all times Mr Murphy was keen to say that he was a self-representing person and to apologise if he did not deal correctly with procedures. However, there was no coherent reason why if the respondents genuinely believed that the claimant had been guilty of gross misconduct, they could not give her proper due process by complying with Schedule One of the Employment (Northern Ireland) Order 2003. Neither was there any explanation given for the often wild allegations that the claimant was lying or credible evidence of any sort to support them. The minority considers that the burden of proof in this case passed to the respondents and they have not proved that they did not commit or were not to be treated as having committed the unlawful act (of dismissing the claimant for being pregnant). Furthermore, as Mrs Murphy was not called to give evidence particularly in relation to the alleged investigation/disciplinary hearing the minority considers that the respondents could not and did not discharge their burden of proof that the treatment afforded to the claimant was not significantly influenced by her pregnancy. To do so “… it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was not significantly influenced as defined in Nagarajan v London Regional Transport [1999] IRLR 572, by grounds of sex”, in accordance with the dictum of H H Judge McMullan QC in the case of Chamberlain Solicitors v Emokpae [2004] IRLR 592.
22. For these reasons the minority of the tribunal considers that the claimant was unfavourably treated by the respondents on account of her pregnancy contrary to Article 5A(1) of the Sex Discrimination (Northern Ireland) Order 1976 and also considers that the claimant was unfairly dismissed on account of her pregnancy contrary to Article 131 of the Employment Rights (Northern Ireland) Order 1996.
COSTS
23. There was a very strong case at all times put forward by Mr Murphy that a Preparation Time Order should be made in his favour. The law relating to Preparation Time Orders is found in Regulation 44(2) and (3) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (NI) 2005. These state as follows:-
“(2) A tribunal or chairman shall consider making a Preparation Time Order against party (the paying party) where, in the opinion of the tribunal or the chairman (as the case may be) any of the circumstances in paragraph 3 (apply). So considered the tribunal or Chairman may make a Preparation Time Order against that party if it or he considers it appropriate to do so.
(3) The circumstances described in paragraph 2 are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived.”
24. Unanimously the tribunal considered that this application had no merit. It could not be said that the bringing of the proceedings in itself was misconceived, as it was only by a majority that the claimant’s case was dismissed.
25. In connection with the conduct of the proceedings, once again unanimously, the tribunal considers that while there may have been some limited evidence of unreasonable behaviour, this was not sufficient to merit a Preparation Time Order being made against the claimant.
26. A cross application was made against the respondents under Regulation 40(2) and (3) of the same rules, the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. This was however a much more limited and measured application and in other circumstances the tribunal might have granted it. However, on the day fixed for the commencement of the substantive hearing the tribunal found itself in the position of having to sit down with the parties to find out why the Case Management directions had been breached and the bundles not agreed ready for the hearing to start. This was (at the very least) a highly unusual situation in which the relationship between the parties had reached such a pass that they were incapable of dealing in any meaningful way with this issue. It is the tribunal’s view that the parties were required to comply with the Case Management directions and that by allowing the case to reach the time set for hearing without such compliance, whatever may have been respective reasons for the difficulties they encountered in dealing each with the other, they were jointly responsible for the delay in the commencement of the hearing and this undoubtedly had an impact on the running of the hearing in general. Therefore, the tribunal does not consider it appropriate to make an award of costs against either party and both applications are dismissed.
Chairman:
Date and place of hearing: 2-3, 9 and 30 July 2013 and 1 August 2013, Belfast.
Date decision recorded in register and issued to parties: