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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Close v Belfast Audi Limited [2013] NIIT 02966_11IT (05 June 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/2966_11IT.html
Cite as: [2013] NIIT 2966_11IT, [2013] NIIT 02966_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2966/11
CLAIMANT: Linzi Close
RESPONDENT: Belfast Audi Limited
DECISION
The unanimous decision of the tribunal is that the claimant was subjected to unlawful sex discrimination on the grounds of her pregnancy and was unfairly dismissed. The tribunal awards her compensation totalling £.12,521.56. The claimant’s claims of sexual harassment and victimisation are dismissed.
Constitution of Tribunal:
Chairman: Ms J Knight
Members: Ms E McFarline
Mr H Stevenson
Appearances:
The claimant was represented by Mr S Mearns of John Ross and Son Solicitors.
The respondent was represented by Mr P Moore of PM Associates.
ISSUES
1. The issues to be determined by the tribunal as agreed by the parties were as follows:-
a) whether there was a continuing act of discrimination culminating in the dismissal of the claimant or were some of the claimant’s complaints presented outside of the time limits specified in Article 76(1) of the Sex Discrimination (NI) Order 1976 (as amended), and if so;
b) whether in all the circumstances it is just and equitable for the tribunal to entertain these complaints even though they are made out of time?
c) whether or not the claimant was treated less favourably on the grounds of her pregnancy or pregnancy related illness contrary to Article 5A of the Sex Discrimination (NI) Order 1976 (as amended) in extending her probationary period and /or dismissing her?
d) whether or not the claimant was treated less favourably on the grounds of her sex contrary to Article 3(1)(a) of the Sex Discrimination (NI) Order 1976 (as amended) in extending her probationary period and /or dismissing her?
e) whether or not the claimant was subjected to harassment contrary to Article 6A(1)(a) of the Sex Discrimination (NI) Order 1976 as amended?
f) whether or not the claimant was subjected to unlawful discrimination by way of victimisation contrary to the provisions of Article 6(1) of the Sex Discrimination (NI) Order 1976 as amended, arising out of an alleged verbal complaint by the claimant?
g) whether or not the claimant was unfairly dismissed contrary to the provisions of the Employment Rights (NI) Order 1996 as amended?
h) if the claimant’s claims are well founded,
(i) whether or not the respondent complied with the LRA Code of Practice on Managing Grievances, and if not should an uplift be applied to the award made?
(ii) should the tribunal make an award of aggravated damages against the respondent?
2. Additionally the tribunal had to determine:-
(i) Whether or not the claimant has complied with the statutory grievance procedures with regard to those of her complaints which arose prior to 3 April 2011 set out in Schedule 1 to the Employment (Northern Ireland) Order 2003.
(ii) Whether the respondent had complied with the statutory dismissal and disciplinary procedures set out in Schedule 1 to the Employment (Northern Ireland) Order 2003.
3. The tribunal determined at the outset with the agreement of the parties that it was in the interests of justice that the tribunal should not deal with the jurisdictional issues as a preliminary point but should hear the entire evidence in the case before reaching its conclusions.
EVIDENCE
4. The tribunal considered the witness statements and oral evidence of the claimant on her own behalf and of Mr Colin Pedlow, Mr Stewart Beattie, Mr Robert Jordan, Mr Philip Smith, Mr Richard Armstrong, Mr Richard Eakin and Mr Mark Raine on behalf of the respondent. The tribunal also took into account documentation to which it was referred during the course of the hearing. Generally the tribunal preferred the evidence of the claimant to that of the witnesses for the respondent which tended to be contradictory and evasive.
FINDINGS OF FACT
5. The tribunal found the following relevant facts to be proven on a balance of probabilities:-
(1) The claimant was employed by the respondent as a Used Car Administrator from 4 October 2010 until her dismissal on 17 October 2011. Her appointment was subject to the completion of a satisfactory six month probationary period.
(2) Her duties included sales administration which involved updating car portfolios, website maintenance of used car sales stock, coordinating availability of information and the preparation and completion of used car files. Her job ensured after receiving the file after the sale of a used car from the salesmen, that all the necessary paperwork was present and customer signatures were present on file, before archiving. Her other duties concerned stock movement and control, tracking of vehicles through the delivery process and health and safety matters.
(3) She received two months’ training from Robert Jordan, Used Car Sales Controller, who prior to the claimant’s appointment had carried out her role with the help of Colin Moore. After this training, she performed her duties on her own. She had daily meetings with her line manager Mr Colin Pedlow, then the Sales Manager. Mr Pedlow attended a weekly managers’ meeting with Mr Beattie, the Regional Area sales manager, Mr Eakin, Mr Jordan and Mr Smith.
(4) The claimant suffered her first miscarriage in January 2011 when she was ten weeks’ pregnant. She took one week’s sickness absence due to her miscarriage although her doctor had advised her to take at least three weeks. She was naturally very distressed and upset as a result of her miscarriage.
(5) She returned to work on Monday, 24 January 2011. During her usual daily meeting the claimant discussed her miscarriage and absence from work with Mr Pedlow. There was a dispute between the claimant and Mr Pedlow about what was said during this conversation. The claimant alleged that Mr Pedlow asked her, “Are you sure that’s what happened and you didn’t just want a week off?” and that he suggested to her that she should drink less coke, eat fewer fries and that she should do more exercise such as going to the gym. The claimant told the tribunal that these comments made her feel that the miscarriage had been her own fault because she was overweight. Mr Pedlow denied that he had made these statements to the claimant, stating that he had simply shared with the claimant how a good and healthy lifestyle can help a pregnancy and difficulties experienced by him and his wife in trying to have a family. However in cross examination he admitted to having discussed the amount of coke that the claimant had been drinking, having initially denied this. Therefore on balance the tribunal preferred the consistent evidence of the claimant and finds that Mr Pedlow did in fact make these comments to the claimant.
(6) The claimant told the tribunal that she was so upset she spoke to Mr Stewart Beattie who was Mr Pedlow’s line manager, that afternoon about Mr Pedlow’s comments and how they had upset her. She alleged that Mr Beattie told her to leave it with him. Although Mr Beattie denied this conversation took place, the tribunal is satisfied on a balance of probabilities that the claimant did speak to Mr Beattie about the comments, although she did not intend to raise a formal grievance. She heard nothing further from Mr Beattie and the claimant did not raise the matter again herself because she said that she had only recently started her employment and did not wish to risk losing her job.
(7) The next few months were uneventful except for one occasion when the claimant alleged that Mr Pedlow commented to her that she should wear makeup as it had a positive effect on her appearance. The claimant said that this comment knocked her confidence at a time when she was recovering from her first miscarriage. Mr Pedlow denied making this comment. The claimant did not raise any complaint or grievance about this at the time.
(8) In April 2011 the claimant unfortunately suffered a second miscarriage and took one week’s sickness absence. The claimant alleged that on her return Mr Pedlow again made comments at his daily meeting with her concerning her weight and diet. The claimant stated that she was made again to feel that the miscarriage had been her own fault as she did not take his advice from the first time. The claimant states that she became self conscious about what she was eating and drinking if Mr Pedlow was in the canteen. Although Mr Pedlow denied making any such comments, he conceded that he had joked with the claimant that she was drinking more water and that she had agreed that she was well aware that she had been drinking too much coke. The claimant did not raise any complaint or grievance about these comments at the time to Mr Pedlow or anyone else.
(9) Mr Pedlow discussed the claimant’s probationary period with his fellow managers at a weekly managers’ meeting in April 2011 and “it was agreed that her probation period should be extended as she hadn’t been in work for long enough periods of time to fully assess her ability to do the job she had been employed to do.” At this stage she had taken two week’s absence due to her miscarriages in January and April 2011 and two days sickness absence in December 2010 due to a cold.
(10) Mr Pedlow held a six month appraisal meeting with the claimant on 18 April 2011. There were no minutes or other record of this meeting available at the hearing. An appraisal document was signed off by both the claimant and Mr Pedlow at the end of the meeting, which Mr Pedlow told the tribunal was sent by him to the HR department after his appraisal meeting with the claimant. Mr Pedlow’s disputed evidence, was that he discussed with the claimant in detail issues about her performance, namely that she was not keeping the website up to date and warranties and cherished number plates, and that this was recorded in the appraisal document. Mr Pedlow told the tribunal that he “informed her that her probation period would be extended due to her absences from work to give her a chance to improve.” The respondent was unable to locate the appraisal for the tribunal hearing. Although it was indicated at a case management discussion that the respondent would be leading evidence that the claimant was given a copy of her performance record prior to this meeting, Mr Pedlow could not in fact recall whether or not he had given the claimant a copy of this document. The tribunal accepted the claimant’s evidence that she had not been given a copy of the appraisal document. The claimant denied that Mr Pedlow raised with her any performance issue concerning the website, warranties and cherished number plates and stated that Mr Pedlow informed her that the only concern was her timekeeping and attendance.
(11) Mr Pedlow did not follow up with the claimant on the issues of concern which he stated were discussed with the claimant at the appraisal meeting in April 2011 and these matters were not discussed with her again. Indeed Mr Pedlow confirmed that he did not raise any performance issues with the claimant between April and 11 June 2011.
(12) The respondent had agreed that the claimant could take leave in June and July 2011 for her wedding and honeymoon. The claimant invited Mr Pedlow and other work colleagues to attend as guests at her wedding. She stated that she invited him as her line manager as a matter of “good etiquette” and did not expect him to attend. Mr Pedlow was aware that she had already invited other colleagues and in the event was unable to attend due to the lateness of the invitation issued to him.
(13) The claimant discovered that she was again pregnant on 10 June 2011, the day before her wedding. She was due to return to work from annual leave on 14 July 2011. However the claimant was unable to return as planned due to pregnancy related illness and she was absent from work on the advice of her doctor on 14 and 15 July 2011. With the exception of several days towards the end of July 2011 the claimant remained on sick leave until 5 September 2011.
(14) The claimant states that she submitted sick lines from her doctor to cover all periods of absence. This was disputed by the respondent. At this time Mr Pedlow was on annual leave and his role as the claimant’s line manager was being covered by Mr Philip Smith, Sales Manager for Audi Portadown. Mr Smith’s evidence was that the claimant had not submitted any sick lines to cover her absence nor had she kept in touch with the respondent as required by the sickness absence notification procedure. He was informed that Mr Jordan received a telephone call from the claimant on 1 August 2011 to say that she had been in hospital and that her husband would be leaving in a “sick line”. When this was not received Mr Smith telephoned the claimant on 5 August 2011 who stated that she was unwell that she had been in hospital and that she was on medication. Mr Smith was aware that the claimant’s current absence was pregnancy related and he was aware of her miscarriage in April 2011. She informed him that she would be in work on Monday, 8 August but on that date her husband telephoned the respondent to advise that the claimant would not be in until the following day as she was still unwell. The claimant did not come in to work on 9 August so Mr Smith telephoned her again and she informed him that she had reacted to the tablets and she was to go back into hospital to be put on a drip. She said that her husband would leave in a “sick line” and that she would call Mr Smith later to let him know how she was getting on. He called the claimant the next day twice and again on 11 August and left a message for her as she did not pick up. He called her again on 11 August 2011 and spoke with the claimant who advised that there had been a problem with her phone, that she was in hospital and would try to return to work the following Wednesday, 17 August 2011. The claimant then submitted a sick line until 19 August.
(15) Mr Smith did not contact the claimant further about her absence due to receipt of the sick line. On 11 August 2011, he emailed an account of his communications with the claimant to Mr Beattie, which was copied to Mr Mark Raine, Human Resources Assistant. On 12 August 2011 Mr Beattie wrote to the claimant expressing concern at her continuing failure to keep in regular contact with the company whilst absent from work and reminded her of the company policy regarding absence. He stated that uncertainty regarding her absence had made it difficult to plan resources to cover her duties which had put her colleagues under severe pressure at a very busy time. The claimant’s work at this time was carried out in her absence by Mr Jordan and Mr Colin Moore.
(16) The claimant returned to work on 5 September 2011. Mr Beattie had replaced Mr Pedlow as her line manager, who had been moved to the position of showroom controller. On 12 September 2011 at 11.00 am she had a return to work interview with Mr Beattie. Mr Jordan, who at this stage had been moved to Portadown was also in attendance, having attended the weekly managers’ meeting earlier. There were no minutes of this meeting at the hearing.
(17) In his witness statement Mr Beattie stated that as the “claimant was off work from 11 June to 5 September (2011) with the exception of a few days in July, a decision had to be made whether to extend her probation or terminate her contract”. He told the tribunal that during August 2011 while preparing for an audit by Audi, it had come to light that the claimant had not properly checked and completed all paperwork relating to used vehicle sales which was kept in brown files before filing them away. Failure to complete the paperwork on even one file could have led to a failure of the audit which could have resulted in the respondent losing the Audi franchise. The tribunal was told by Mr Beattie that the fact that the audit was passed was nothing to do with the claimant as she had been absent for most of June, July and August 2011. Mr Beattie told the tribunal that the claimant needed to catch up on the work that she had missed, whereas Mr Jordan confirmed that all of the required paperwork had been brought up to date by the time of the claimant’s return to work in September 2011.
(18) The claimant denied that she was informed about any specific concerns arising out of the audit although it was discussed with the claimant how the brown files should be completed and agreed that the claimant would send an email to the sales team to outline their responsibilities and that she would inform Mr Beattie if the salesmen did not carry out their tasks. The claimant confirmed that she did not require any further training as she knew how to do her job. Mr Beattie informed the claimant that her probation period was to be extended for a further four weeks until 7 October 2011. The claimant was informed that Mr Jordan would carry out a mini audit of her work on 19 September 2011. On 15 September 2011 Mr Beattie wrote to the claimant confirming that her probation period had been extended until 7 October 2011 on which date they would meet again to review the quality of her work and that it was expected that all her work would be up to date and of a standard to pass an Audi UK audit. The letter stated that failure to meet this standard may result in “your probation period not being confirmed with the company.”
(19). On 19 September 2011 the claimant sent an email to members of the sales team and copied to Mr Beattie, outlining the process to be followed by them for completing brown files on the sale of a used car and stating what paperwork should be in the file when they passed it on to her. She requested that these procedures should be adhered to as they were required for audit purposes and that any brown files not completed correctly would be passed on to Mr Beattie. The job description of the sales executives employed by the respondent specifies under a heading of “Administration” that they are responsible for ensuring “details of all vehicle transactions are accurately recorded and registered with the sales administration office” and “all vehicle registration documents, invoices, handbooks to be complete before Customer handover”.
(20) On the same date Mr Jordan attended to carry out his mini audit of the claimant’s work. He told the tribunal that he was astonished to find eight files in a box of approximately fifty files which had been ostensibly checked by the claimant as ready for closing, had not been completed to Audi standards. Mr Jordan told the tribunal that there were approximately fifty files in the box which he shuffled before he started his check. When he reached the eighth file which was not correctly completed he terminated his audit, reported his findings to Mr Beattie and returned to the Portadown office. The claimant who had been out of the office at a hospital appointment telephoned Mr Jordan to enquire if everything was alright with his audit. Mr Jordan told her that everything was fine and did not mention the eight files which he had found to be incorrectly completed. He told the tribunal that he considered that the claimant had acted inappropriately in contacting him about this matter as he considered that it was for Mr Beattie as her line manager to follow up on the matter.
(21) On 3 October 2011, the files were subsequently reviewed by Robert Jordan and checked by Philip Smith who confirmed that eight brown files were incomplete. Robert Jordan sent an email to Mr Beattie on 3 October entitled “Finding’s (sic) Monday 3rd” to the effect that the customer signature on the handover booklet was not present on six of the files, there was no address on two of the brown files, the handover booklet was not correctly filled in on one of the files and nothing had been given to the customer, that the thirty day exchange certificates were on the file when they should have been given to customers, that some other documentation was not given to the customers and that signatures and main details were missing from some of the files. None of this was raised with the claimant until the review meeting scheduled for 7 October 2011 which took place in Mr Beattie’s office. Mr Mark Raine, HR Assistant for the respondent, was also present at this meeting.
(22) Mr Beattie went through the list of the incomplete files with the claimant and the issues with the files were drawn to the claimant’s attention. The claimant pointed out that Mr Jordan had told her that everything was fine and in her evidence to the tribunal she stated that she felt “betrayed” by Mr Jordan and that he had lied to her. The claimant explained that the handover lists were not being filled in by the salesmen, that she had given the files that Mr Jordan had identified back to the salesmen to complete and that she had to chase the salesmen to complete the handover lists. She also explained that the thirty day exchange certificates were not actually on the files and that the documents on files were in fact A4 copies that she had made. She denied that the files which had been inspected by Robert Jordan had been archived by her as they were in a box beside her which she was working through. She stated that salesmen had been throwing the brown files into the box instead of giving them to her after the sale of the vehicle. Mr Beattie pointed out that if an auditor looked at these files the respondent would fail an audit. The claimant indicated that she understood this and asked for a copy of the list of files to take away with her. It was confirmed at the hearing that the files were subsequently correctly completed and archived. At the meeting Mr Beattie informed the claimant that he would further investigate the details with Mr Smith and Mr Jordan. He informed the claimant that he would speak with her again the following week as to what would happen next.
(23) On 10 October 2011 Mr Smith sent an email to Mr Beattie stating that on Monday, 3 October “Robert gave me a box of brown files that were in the archive box that Linzi had indicated were complete and finished. On checking these files I found eight of these were not complete and would have failed an audit.”
(24) Mr Beattie wrote to the claimant on 11 October 2011 inviting her to attend a disciplinary interview on 14 October 2011. The stated reason for the interview was that following an audit of her work by Philip Smith and Robert Jordan, eight customer files were found not to be up to the audit standard outlined by Audi UK. A list of the files was enclosed together with a copy of Mr Smith’s email of 3 October 2011. It was stated that she would be given an opportunity to answer the allegations, that she could bring witnesses and that due consideration would be given to any factors or explanations raised by her when considering “what if any disciplinary sanctions are to be imposed”. It was stated that as she was still in her probation period, this meeting could result in her employment being terminated. The claimant was informed of her right to be accompanied by a trade union official or work colleague.
(25) The meeting took place on 14 October 2011 at 11.00 am. The minutes record that this was a probation review meeting. Mr Beattie and Mr Raine were present and the claimant attended, unaccompanied by choice. The claimant was asked to put forward her case regarding the files which had been found to be incomplete. She pointed out that the thirty day exchange forms on the files audited by Mr Jordan were in fact present (although she conceded that HP1 certificates needed to be filed). She asserted that it was the responsibility of the “salesguys” to ensure that the handover books were signed by the customer and that she was being penalised for the failure of the salesmen. She accepted that it was her responsibility to make sure that all the correct paperwork was on the file before it was archived but she asserted that in the case of these eight files the salesmen had put them into the box beside her desk without her knowledge. She enquired whether any of the salesmen would be spoken to about their failure to carry out their responsibilities. Mr Beattie stated that an auditor will take a random sample of files and therefore all files need to be fully complete. He understood that salesmen “sometimes did not complete all of the admin but that it was her role to chase the sales people and to report back to him which she had not done”. She reiterated that she had sent an email to salepersons on 19 September 2011 outlining their responsibilities and that since this email the salesmen had been giving her the files. She also queried why the eight files had not been drawn to her attention by Mr Jordan when she had spoken with him on 19 September 2011 and why she was only made aware of them on 3 October 2011.
(26) The meeting adjourned at 11.15 am and reconvened at 11.20 am upon which Mr Beattie informed the claimant that he intended to consider the situation and the claimant’s points over the weekend and that he would meet with her again on Monday. He advised her, upon the advice of HR, that there could be three possible outcomes: dismissal, confirmation of her probation or that she would receive a final written warning.
(27) The disciplinary/probation review meeting reconvened at 10.00 am on Monday, 17 October 2011. Mr Beattie informed the claimant that he had spoken with other sales managers and pointed out that there could have been an audit fail. He stated that he had spoken to the claimant on several occasions about the files and had given her several chances to sort out the files and had extended her probation accordingly. He expressed concern that the claimant had failed to communicate any issues she was having with him and that he did not feel that the claimant could be relied upon to do her job properly without constant supervision and that this was not an option. He advised that her “probation could not be confirmed” and that she would not be required to work her notice period. Mr Raine confirmed that she would be paid one week’s pay in lieu of notice.
(28) At the hearing Mr Beattie explained that he had discussed his decision not to confirm the claimant’s employment with his colleagues, including Mr Eakin, the Managing Director, at the weekly manager’s meeting which had taken place that morning. He told the tribunal that he had the full support of Mr Eakin for his decision to dismiss the claimant. Mr Eakin confirmed this in his evidence to the tribunal. Mr Beattie did not interview any of the salesmen and did not give consideration as whether any disciplinary or other action should be taken against the salesmen who had not properly completed the handover checklists and obtained customer signatures prior to giving the file to the claimant for archiving. He told the tribunal that although administration is part of the salesmen’s job description that “there would not be a salesman in the group if they were disciplined for poor paperwork”.
(29) The claimant’ dismissal was confirmed by letter dated 18 October 2011. The claimant was not informed of her right to appeal against dismissal nevertheless on the same date the claimant wrote to Mr Beattie to advise that she wished to appeal against the decision notified to her at the meeting on 17 October 2011.
(30) She wrote again to Mr Beattie on 28 October 2011 as she did not receive a response to her appeal letter. Mr Raine replied on 1 November 2011 requesting that she write to Mr Eakin, Managing Director to outline the grounds of her appeal. He apologised for the delay in replying and stated that the original of her earlier letter was not received.
(31) On 2 November 2011 the claimant wrote to Mr Eakin stating that she wished to appeal against the decision to dismiss on the basis that the decision was unfair and discriminatory. She requested that her husband be allowed to accompany her to the appeal meeting as at this stage she was 6 months’ pregnant. On the advice of her solicitor she enclosed a document setting out grievances against the respondent. She stated that she felt the extension of her probationary periods by Mr Pedlow and Mr Beattie and her subsequent dismissal was discriminatory on grounds of sex and maternity and that she was dismissed purely because of her pregnancy. She also raised the comments made to her by Mr Pedlow in January and April 2011 and that she had felt pressurised into returning to work by the telephone calls from Mr Smith.
(32) Mr Eakin wrote to the claimant on 1 November 2011 to arrange for the appeal hearing on 16 November 2011. He advised the claimant that under the respondent’s procedures she could be accompanied by a trade union representative or work colleague but that her husband could not be present. Mr Eakin sought clarification from the claimant at the beginning of the meeting as to whether it was a meeting to deal with her appeal or to deal with her grievance. The minutes (taken by Kim Stevenson) record that the claimant stated that it was an appeal for “unfair dismissal”. The claimant asserted that the record is incorrect as she told the tribunal that she said “Both”. Mr Eakin gave evidence that he nevertheless dealt with both her appeal against dismissal and grievance simultaneously. After meeting the claimant, Mr Eakin spoke with Mr Pedlow and Mr Beattie and reviewed the claimant’s attendance record, minutes of meetings and correspondence between 19 July and 17 October 2011. There are no records of Mr Eakin’s meetings with Messrs Pedlow and Beattie. The tribunal did not believe Mr Eakin’s evidence that he also interviewed Mr Jordan as there is no record of this interview, it was not mentioned in his letter to the claimant notifying her of the outcome of the appeal hearing and was not mentioned by Mr Jordan in his evidence to the tribunal. He did not interview anyone else or carry out any other enquiry as he stated that “I trusted my staff”, namely Mr Beattie and Mr Pedlow.
(33) Mr Eakin wrote to the claimant on 24 November 2011 advising her that he did not uphold her appeal. He rejected her allegations that she had been subjected to discrimination on grounds of sex and maternity. With regard to her allegations against Mr Pedlow, his rejection was on the basis that the claimant had not made a prior complaint about this to anyone including the respondent’s two Harassment Officers, that Mr Beattie denied that she had complained to him, that she did not call any witnesses and that she had invited Mr Pedlow to her wedding. Mr Eakin further rejected her grievance that she was subjected to a detriment when her probation period was extended in April and September 2011 stating that this was related to her unsatisfactory performance. He stated in his letter that her probationary period had also been extended on 26 July 2011 as she had been absent between 10 June and 17 July 2011 and because Mr Pedlow considered that her performance had not improved. He maintained this assertion at the hearing despite the fact that Mr Pedlow, who was her line manager at the time, had no recollection of the claimant’s probation period being extended in July 2011 or raising any performance issues with her at that time.
(34) Mr Eakin confirmed to the claimant that she was dismissed due to concerns about her performance and not on grounds of sex and pregnancy. Mr Eakin’s decision under the disciplinary procedure was final. The respondent’s grievance procedure provides that if an employee is dissatisfied with the outcome of a grievance they shall be notified of their right to appeal at Stage 2 to a more senior manager. However the grievance procedure specifies that where an employee is aggrieved at the outcome of a disciplinary, performance review or dismissal, the appropriate appeal should be invoked instead of the grievance procedure.
(35) The claimant was paid up until 24 October 2011. She received statutory maternity pay from 27 November 2011 until 25 August 2012. Had the claimant remained in the employment of the respondent she would have gone on maternity leave from 27 November 2011 until 26 March 2012. The claimant went to New Zealand between 11 April 2012 and 21 May 2012 and returned to Northern Ireland until 5 July 2012 at which stage she returned to New Zealand. It appears that the claimant omitted to inform the DSS that she had left the jurisdiction and may now have to repay some of the SMP. In correspondence with the DSS the claimant stated that the reason for her absence from this jurisdiction was that “Husband had obtained work in New Zealand”. The claimant herself has obtained employment in New Zealand from 6-27 July 2012 and from 3 December 2012 obtained other employment as a Corrections Officer. It is the claimant’s contention that she has not yet emigrated to New Zealand although it is her intention so to do.
(36) The claimant lodged her originating claim form with OITFET on 5 December 2011 complaining that she had been unfairly dismissed and subjected to less favourable treatment on the ground of her sex and pregnancy, that she had been unlawfully harassed on grounds of sex and/or pregnancy and unlawful sex discrimination by way of victimisation. It was contended that the claimant was less favourably treated than the salesmen who are all male as the respondent did not undertake any investigation or other action to manage their performance in failing properly to complete the files before returning them to the administration office for checking.
(37) The tribunal also heard evidence from Mr Richard Armstrong, Service Manager, concerning two male employees in the workshop who in June 2011 were not dismissed following disciplinary action for failing to detect a damaged wiper blade in a vehicle inspection, which led to a loss of bonus payment of £40,000 for that quarter. The tribunal did not consider this to be relevant to the claimant’s case because this occurred in a different department and did not involve the same managers.
LAW
6. The tribunal took into consideration the written and oral submissions by the representatives of the parties concerning the relevant statutory provisions and case law.
. Time limits in discrimination cases
7. Article 76 (1) of the Sex Discrimination (Northern Ireland) Order 1976 (hereinafter referred to as the “SDO”) provides that:-
“An industrial tribunal shall not consider a complaint under Article 63 unless it is presented to the tribunal “before the end of the period of three months beginning when the act complained of was done.”
Article 76(5) of the SDO provides:
“A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”
Article 76(6)(b) provides that “any act extending over a period shall be treated as done at the end of that period.”
Under Article 19 of the Employment (Northern Ireland) Order 2003 a tribunal cannot hear a complaint of sex discrimination, relating to treatment other than dismissal, unless the employee had first raised a grievance in writing and waited 28 days before lodging an originating complaint with the Office of the Tribunals. This provision applies to complaints which wholly arose prior to 3 April 2011, when it was repealed.
Direct Sex Discrimination
8. Article 3(1) provides that in any circumstances relevant for the purposes of any provision to which paragraph (2) applies, a person discriminates against a woman if –
(a) On the ground of her sex, he treats her less favourably than he treats or would treat a man.
. Discrimination on the ground of pregnancy/maternity leave
9. Article 5A of the Sex Discrimination (Northern Ireland) Order 1976 [“the 1976 Order”] provides that:-
(1) “In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if-
(a) at a time in a protected period, and on the ground of the woman’s pregnancy, the person treats her less favourably; .....
For the purposes of paragraph 1 the protected period begins each time a woman becomes pregnant and ends at the end of her maternity leave entitlement or if earlier when she returns to work. If she is not entitled to maternity leave, the protected period ends at the end of a two weeks beginning with the end of the pregnancy.
Article 5A (3) (b) provides: Where a person’s treatment of a woman is on grounds
of illness suffered by the woman as a consequence of a pregnancy of hers, that treatment is to be taken to be on the ground of pregnancy.
In pregnancy discrimination cases there is no requirement for a male comparator, although Madarassy is authority for the proposition that a tribunal may compare the claimant’s treatment with that of a hypothetical male comparator to decide whether or not pregnancy was the reason for the alleged less favourable treatment. If the reason for the treatment is pregnancy, then the detriment resulting is unlawful sex discrimination even though other employees in the same circumstances are or would be treated the same way. If a woman is treated less favourably because of her absence due to pregnancy or miscarriage related illness this will also amount to unlawful pregnancy or sex discrimination.
HARASSMENT
10. Article 6A (1) For the purposes of this Order a person subjects a woman to harassment if –
(a) On the ground of her sex, he engages in unwanted conduct that has the purpose or effect:-
(i) of violating her dignity, or
(ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, .....
(2) Conduct shall be regarded as having the effect mentioned in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of the woman, it should reasonably be considered as having that effect.
VICTIMISATION
11. Article 6 (1) of the 1976 Order prohibits discrimination by way of victimisation and provides “(“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this order if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has-
d. alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Order or give rise to a claim under the Equal Pay Act [or under Articles 62 to 65 of the Pensions (Northern Ireland) Order 1995],
or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them.”
DISCRIMINATION IN THE EMPLOYMENT FIELD
12. Part III of the 1976 Order prohibits discrimination by employers in the employment field.
Article 8(2) provides that it is “unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her-
….. (c) By dismissing her, or subjecting her to any other detriment.”
BURDEN OF PROOF: INDUSTRIAL TRIBUNALS
13. Article 63A of the 1976 Order as amended provides in relation 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.”
UNFAIR DISMISSAL
14. An employee has the right not to be unfairly dismissed pursuant to Article 126 of the Employment Rights (NI) Order 1996 as amended. When deciding the question of fairness it is for the respondent to show what was the reason for dismissal. Conduct and capability are potentially fair reasons for dismissal and it is for the tribunal to consider whether in all the circumstances the employer acted reasonably or unreasonably in treating the reason as being sufficient to justify dismissal.
15. Article 131(1) (a) of the 1996 Order provides that an employee will be regarded as being unfairly dismissed if the reason (or if more than one, the principal reason) for her dismissal is that she is pregnant or for any other reason connected with her pregnancy.
16. A dismissal will be automatically unfair if an employer fails to follow the three step procedure contained in Schedule 1 to the 2003 Order.
Step 1 is the statement of grounds of action and invitation to the meeting
Step 2 is the meeting.
After the meeting the employer must inform the employee of his/her decision and notify him/her of the right to appeal against the decision if he/she is not satisfied with it.
Step 3 is the appeal.
17. Where a dismissal is automatically unfair the basic award shall be increased to four weeks’ pay where the employee would normally be entitled to a basic award of less than four weeks’ pay. [Article 154(1A) of the 1996 Order]. In addition the tribunal must apply an uplift of at least 10% to the compensatory award. where the failure to comply with the statutory dismissal procedures is attributable to the employer. [Article 17(3) of the 2003 Order].
RELEVANT CASE LAW
18. Hendricks v Metropolitan Police Commissioner
[2003] IRLR 96 CA;
Webb v Emo Air Cargo (UK) Limited 1993, IRLR 27, Wong v
Igen Limited and others 2005 3All ER812; Equal Opportunities Commission v
Secretary of State for Trade and Industry 2007 IRLR 377; Madarassy v
Nomura International Plc 2007 IRLR 264; Laing v Manchester
City Council 2006IRLR748; Shamoon v Chief Constable of the Royal
Ulster Constabulary 2003 ICR 337; McDonagh v
Thom T/A The Royal Hotel Dungannon [2007] NICA 3; Stephen William Nelson v
Newry and Mourne District Council [2009] NICA 24; Nagarajan v London
Regional Transport [1999] IRLR 572; Whitley v Thompson EAT
1167/97; Vento v Chief Constable of
West Yorkshire Police (No 2) 2003 IRLR 102; McConnell v Police Authority for NI [1997]
IRLR 635; Rogan v South Eastern Health and Social Care Trust
[2009] NICA 42.
CONCLUSIONS
19. The tribunal reached the following conclusions:
TIME LIMITATION AND JURISDICTIONAL ISSUES
20. It was submitted by the respondent that the claimant’s complaints of verbal harassment by Mr Pedlow and relating to the extension of her probationary period had been presented out of time and therefore the tribunal did not have jurisdiction to consider these complaints. The tribunal had to decide whether there was a series of separate and discrete acts of discrimination or whether the earlier acts complained of were part an ongoing act of discrimination in which case the claim would be presented in time as the originating claim was presented to the Office of the Tribunals within the time limit prescribed by both the 1996 Order and the 1976 Order. In Hendricks v Metropolitan Police Commissioner [2003] IRLR 96 EWCA it was held that the claimant was entitled to pursue her claim on the basis that the burden was on her to prove, either by direct evidence or inference, that the numerous alleged instances of discrimination were linked to one another and were evidence of a continuing discriminatory state of affairs covered by the concept of “an act extending over a period”.
UNLAWFUL HARASSMENT
21. These allegations arose out of the comments made by Mr Pedlow to the claimant about drinking coke, eating chips and recommending that the claimant should go to the gym and in addition the comment about make up.
22. Guidance for what constitutes unlawful harassment may be found in the case of Whitley v Thompson EAT 1167/97 as follows:-
“(1) A characteristic of harassment is that it undermines the victim’s dignity at work and constitutes a detriment on the grounds of sex; lack of intent is not a defence.
(2) The words or conduct must be unwelcome to the victim and it is for her to decide what is acceptable or offensive. The question is not what (objectively) the tribunal would or would not find offensive.
(3) The tribunal should not carve up a course of conduct into individual incidents and measure the detriment from each; once unwelcome sexual interest has been displayed, the victim may be bothered by further incidents which, in a different context, would appear unobjectionable.
(4) In deciding whether something is unwelcome, there can be difficult factual questions for a tribunal; some conduct (eg sexual touching) may be so clearly unwanted that the woman does not have to object to it expressly in advance. At the other end of the scale is conduct which normally a person would be unduly sensitive to object to, but because it is for the individual to set the parameters, the question becomes whether that individual has made it clear that she finds that conduct unacceptable. Provided that that objection would be clear to a reasonable person, any repetition will generally constitute harassment.”
23. It is accepted that the claimant was upset by Mr Pedlow’s comments, which would probably not have been made had the claimant not suffered a miscarriage. However the tribunal must also consider whether objectively the comments had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The tribunal does not consider that in the context of the conversation where the claimant accepted that Mr Pedlow had discussed his and his wife’s own personal experiences of trying to have a family, that the comments about diet and exercise could be reasonably perceived as being offensive, even though the tribunal has had particular regard to the fact that the claimant found them to be so.
24. The tribunal takes a different view of the comment about make-up which it considers was gratuitous and offensive. However the tribunal does not consider that the remark can be linked to the claimant’s sick leave nor indeed to the previous comments about diet and exercise and therefore cannot be regarded as being part of a continuing act of discrimination which culminated in the dismissal of the claimant. The claimant made a conscious decision not to make a formal complaint about the comments at the time. As this is a “stand alone” allegation, the tribunal does not have jurisdiction to deal with this particular allegation as it arose prior to 3 April 2011 and the claimant did not comply with the statutory grievance procedures then in force, which required her to make a written grievance to the respondent. The claimant’s claim of unlawful harassment is therefore dismissed.
DISCRIMINATION BY WAY OF VICTIMISATION
25. The tribunal does not consider that the claimant has established facts from which it could infer that the claimant was victimised. Although the tribunal accepts that the claimant spoke to Mr Beattie about the comments made to her by Mr Pedlow, the tribunal does not accept that this could fall within the statutory definition of a protected act. The claimant did not articulate to and the tribunal is not satisfied that from what she said that Mr Beattie should have understood that there was any complaint against Mr Pedlow by reference to the 1976 Order. Further the claimant gave no evidence at the hearing that she believed that the less favourable treatment alleged by her was as a result of reporting Mr Pedlow’s comments to Mr Beattie. The claimant’s claim of unlawful discrimination by victimisation is therefore dismissed.
Pregnancy and Sex Discrimination
26. The claimant contends that she was subjected to less favourable treatment on the grounds of her sex and pregnancy when her probationary period was extended in April 2011 and again in September 2011 and subsequently in being dismissed. It is for the claimant to establish facts from which the tribunal can infer that the reason for the treatment is on grounds of pregnancy. There is no need for a male comparator in order to establish discrimination, although an “evidential male comparator” may be used if necessary in order to clarify the reason for the treatment.
Extension of Probation in April 2011
27. The claimant’s case is that her probation was extended because she had been absent on sick leave on two occasions because of her miscarriages. The clear evidence of Mr Pedlow was that a decision was taken at the managers’ meeting that her probationary period should be extended as she had not been in work for long enough periods to assess her ability to do her job. Apart from two days absence in November 2011 the claimant had been off for one week in January 2011 and one further week in April 2011 due to miscarriages during her six months’ employment up to the date of the appraisal. The tribunal concluded that there was a causal link between the claimant’s absences due to miscarriage and the decision to extend her probationary period rather than to confirm her appointment.
28. There was no explanation at all from the respondent as to why it was not possible to assess the claimant’s ability on the basis of her performance for the period that she was in fact in work. On the other hand the respondent also asserted that the probationary period was extended to allow the claimant to address performance issues but did not provide satisfactory evidence that this was the case. No explanation was given by the respondent as to why the appraisal document could not be located by the respondent. The tribunal has found as a fact that performance issues, apart from timekeeping, were not raised with the claimant at the appraisal meeting which took place in April 2011 and no further performance issues were raised with the claimant until after her return to work in September 2011. The tribunal is therefore satisfied that the reason for the extension of the claimant’s probationary period in April 2011 was her absences due to her miscarriages.
29. The tribunal carefully considered the respondent’s submission that the extension of the probationary period did not amount to a detriment. The House of Lords decision in Shamoon v The Chief Constable of the Royal Ulster Constabulary 2006 UK HL 11 held that “for a disadvantage to qualify as a “detriment”, it must arise in the employment field in that the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work. An unjustified sense of grievance cannot amount to “detriment”....it is not necessary to demonstrate some physical or economic consequence”.
30. In the present case, the tribunal is satisfied that the claimant did suffer a detriment as a reasonable employee in the claimant's position would have a justified sense of grievance that the probation period was extended when performance issues were not raised by the employer in these circumstances.
Extension of the Claimant’s Probationary Period September 2011 and Dismissal
31. Mr Beattie’s evidence was that as the “claimant was off work from 11 June to 5 September (2011) with the exception of a few days in July, a decision had to be made whether to extend her probation or terminate her contract”. The tribunal considered that this indicates a link in Mr Beattie’s mind between the claimant’s absence, which was mainly due to pregnancy related illness and the need to make a decision about her employment status and that this influenced the process which led ultimately to her dismissal.
32. The tribunal is satisfied that Mr Beattie discussed performance issues which had arisen from the August audit with the claimant on 12 September 2011. However the tribunal accepted the claimant’s evidence that at the meeting this was expressed in general terms and that the role of the salesmen in failing properly to complete the brown files was also discussed. It was not conveyed to the claimant at this meeting that it was no thanks to her that the audit had been passed. Effectively this was the first time that a performance issue was raised with the claimant in view of the tribunal’s conclusions set out at para 5.(10) above. Mr Pedlow confirmed that he did not raise any performance issues with the claimant after April 2011 and the tribunal found Mr Raine’s evidence that the claimant’s probation was extended again in July 2011 prior to the August audit to be completely lacking in credibility.
33. Mr Beattie was involved in the manager’s meeting which had previously decided to extend the claimant’s probationary period in April 2011 and which the tribunal has found was discriminatory.
34. The tribunal accepts that it was legitimate for the respondent to raise with the claimant concerns about the eight files as on the face of it the claimant had not properly checked to ensure that the correct information was on the files and had not reported to Mr Beattie that the salesmen had not been carrying out their administrative duties. The tribunal examined the manner in which the respondent treated the salesmen to assist it in considering how the hypothetical “evidential” comparator would have been treated. Although the salesmen had clearly not been completing the files in accordance with Audi standards, ostensibly throughout August and September 2011, the respondent did not give any consideration at all as to whether any disciplinary or other action should be taken to address this deficiency in performance. The tribunal considered that this amounted to evidence of less favourable treatment of the claimant. The tribunal was satisfied that the claimant had established facts from which it could conclude, in the absence of the respondent’s explanation, that she had been subjected to unlawful discrimination on the grounds of her pregnancy related illness.
35. The tribunal did not consider that the facts found supported the respondent’s explanation that the reason for the treatment that the claimant had persistently failed to carry out her duties, despite being given a further opportunity to improve and that it was necessary to terminate her employment. It appears to the tribunal that the respondent was predisposed to terminate her employment once the eight files were discovered.
36. The treatment of the claimant after the mini audit by Mr Jordan tends to undermine the respondent’s case that she was being given a “further opportunity”. Mr Jordan deliberately concealed his findings from the claimant and she was not informed about any problem until 7 October 2011, the date upon which her extended probationary period was to be reviewed. During the dismissal process the respondent did not investigate at any time the claimant’s explanation that she was unaware of the eight files in question and that they were put in the box by the sales men without her knowledge. The salesmen were not interviewed as to whether this was in fact the case. The tribunal considered that if this was the case then there was no basis for the respondent’s criticism of her that she had not reported the deficiencies of the salesmen to Mr Beattie. No account was taken by the respondent to the fact that the mini audit was conducted on the same day as the claimant’s memorandum to the sales men and that the problems with the eight files arose prior to the memorandum being sent. In the circumstances the tribunal was not satisfied that the respondent had discharged its burden of showing on a balance of probabilities that the reason for the less favourable treatment was in no way connected with the prohibited reason. Applying the burden of proof under Article 63 of the 1976 Order the tribunal therefore finds that the respondent did unlawfully discriminate against the claimant on the grounds of her pregnancy in dismissing her.
UNFAIR DISMISSAL
37. The dismissal is automatically unfair as the respondent did not comply with Step 2 of the statutory dismissal and disciplinary procedures. This provides that an employer should notify an employee of their right to appeal against the dismissal decision if they are not satisfied with it. Mr Beattie did not inform the claimant in the present case of her right to appeal either verbally or in writing.
38. Further the dismissal of the claimant is unfair as the tribunal has found that it was for discriminatory reason and which related to the claimant’s pregnancy. From the facts found the tribunal cannot conclude that the respondent has reasonably decided that the claimant was incompetent or that the procedures adopted by the respondent were reasonable in all the circumstances.
COMPENSATION
39. The tribunal is required to award 4 weeks’ pay basic award due to the respondent’s failure to comply with the statutory dismissal procedures. The tribunal further determines that it is just and equitable to make a compensatory award in respect of unfair dismissal. Her net weekly pay as at the effective date of termination was £248.10. The claimant received one week’s pay in lieu of notice. If she had remained in employment she would have begun maternity leave on 27 November 2011 and would have received maternity pay at a rate of £223.29 which is 90% of her weekly pay. Instead from that date, she received maternity allowance at a rate of £128.73 until 9 April 2011 when it was raised to £135.45 per week. She would have expected to return to work on 26 March 2012. The tribunal considers that the appropriate cut off point is 11 April 2012, the date upon which the claimant and her husband initially went to New Zealand with the intention of ultimately emigrating there. The tribunal does not consider that it is appropriate to apply uplift to the compensatory award in the present case in respect of the respondent’s failure to offer the claimant an appeal against the decision not to uphold her grievance as required by the Labour Relations Code of Practice. The claimant had the benefit of legal advice at this stage and did not request an appeal. Further the tribunal questions whether this would have served any practical purpose given that the claimant’s appeal against dismissal was not upheld. However the tribunal is required to impose an uplift of 10% of the compensatory award pursuant to Article 17(3) of the 2003 Order.
40. The tribunal does not consider that such factors as enunciated by the Court of Appeal in McConnell v Police Authority for NI [1997] IRLR 635 were present in the manner in which the respondent treated the claimant or conducted its defence to her claims which would justify an award of aggravated damages in addition to an award of injury to feeling.
Basic Award
4 weeks x 298.07 (gross weekly pay)
x 1 (age multiplier) £1,192.28
Compensatory Award
Loss of earnings
From 17/10/2011(EDT) until 27/11/ 2011
(The date the claimant would have gone on maternity leave)
= £248.10 (net weekly pay) x 5 weeks = £1,240.50
Less one week’s notice pay £248.10
£ 992.40
27/11/2011 until 7/04/2012
(the date the claimant would have returned to work)
Net weekly Loss £94.56 x 19 weeks = £1,796.64
Less tax rebate (December 2011 £700.00
£1096.64
9/04/12 until 11/04/12(3 days)
£112.65 weekly loss x 3/5 £67.59
Statutory loss of employment rights £350.00
Plus 10% Uplift £250.66
Sub total £ 2757.29
Basic Award + Compensatory Award £3949.57
Injury to Feelings
The tribunal considered that the appropriate measure of damages for injury to feeling fell at the lower end of the middle band of Vento in that there was more than one act of discrimination against the claimant which the tribunal considered formed part of a continuing act of discrimination over a number of months.
The tribunal therefore awards £7,500.00 in respect of injury to feeling.
Interest
The tribunal further considered that it was appropriate to award interest of £1,071.99 pursuant to the Interest on Awards in Sex and Disability Discrimination Cases Regulations (Northern Ireland) 1996.
(8% on £7500 from EDT until 5/04/13 date of promulgation £840.00
8% on £3949.57 from midpoint, 11 July 2012 until date of promulgation £231.99)
TOTAL AWARD £12, 521.56
41. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 11-15 March 2013, Belfast.
Date decision recorded in register and issued to parties: