Industrial Tribunals Northern Ireland Decisions
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URL: http://www.bailii.org/nie/cases/NIIT/2014/1533_13IT.html
Cite as: [2014] NIIT 01533_13IT, [2014] NIIT 1533_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1533/13
CLAIMANT: Shauna Gallagher
RESPONDENT: Anne Marie Kennedy, t/a Ciseaux Hair Design
DECISION
The unanimous decision of the tribunal is that the claimant’s claims referred to in paragraph 2 of this decision are dismissed for the reasons set out in the Conclusions at paragraph 9.
Constitution of Tribunal:
Employment Judge: Employment Judge Crothers
Members: Mr F Murtagh
Mrs T Madden
Appearances:
The claimant was represented by Mr K Denvir, Barrister-at-Law instructed by Campbell Stafford Solicitors.
The respondent was represented by Mr N Phillips, Barrister-at-Law instructed by Worthingtons Solicitors.
THE CLAIM
1. The claimant presented her claim form to the tribunal on 27 August 2013. She alleged, inter alia, that she had been constructively dismissed. However, pursuant to a ruling by the tribunal that her letter of resignation was posted on 28 August 2013 and that the effective date of termination of her employment was on 29 August 2013, the claimant withdrew her claim of constructive dismissal in open tribunal. The remaining claims before the tribunal are referred to in paragraph 2 below. The claimant also withdrew any claim for pay in lieu of accrued holidays.
ISSUES BEFORE THE TRIBUNAL
2. The remaining legal issues were as follows:-
(1) Is the claimant’s claim for two weeks’ statutory maternity pay in time, and if not, should time be extended? Without prejudice to the foregoing, is the claimant entitled to two weeks’ statutory maternity pay?
(2) Did the respondent fail to provide itemised pay statements pursuant to Article 40 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”)?
(3) Is the claimant entitled to compensation by virtue of Article 27 of the Order as not having received written particulars of terms and conditions of employment?
(4)(i) Did the respondent, in relation to the reduction in hours or the handling of the grievance process, discriminate against the claimant on the ground of her gender by virtue of Articles 3 and 8 of the Sex Discrimination (Northern Ireland) Order 1976 (“SDO”)?
(ii) Did the claimant sustain injury to feelings, and if so, what is the proper measure of compensation?
SOURCES OF EVIDENCE
3. The tribunal heard evidence from the claimant and, on behalf of the respondent, from Anne Marie Kennedy, her husband Joe Kennedy, the respondent’s manageress, Mairead Delaney, Karen Flannagan and Caroline Caddell. The tribunal was presented with witness statements and bundles of documents. It took into account only the documentation referred to in the course of the hearing.
JURISDICTION
4. (1) The claimant presented her claim form to the tribunal on 27 August 2013, before the effective date of termination of her employment on 29 August 2013.
(2) The tribunal has therefore no jurisdiction to consider any claim under the Industrial Tribunals extension of Jurisdiction Order (Northern Ireland) 1994, for breach of contract as a complaint must be presented within the period of three months beginning with the effective date of termination of the contract giving rise to the claim.
(3) In relation to the provision of itemised pay statements, Article 43(4) of the Order provides that the tribunal “should not consider a reference under this Article in a case where the employment to which the reference relates has ceased unless an application requiring the reference to be made was made –
(a) Before the end of the period of three months beginning with the date on which the employment ceased ...”
Such a claim has to be brought within three months from the effective date of termination and therefore the tribunal does not have jurisdiction to determine such a reference. In any event the tribunal is satisfied, on the balance of probabilities, that payslips were provided at all material times relevant to the claim being made.
(4) The claimant is entitled to compensation in respect of a failure to provide written particulars of terms and conditions of employment under Article 27 of the Employment (Northern Ireland) Order 2003, only in the event (in this case), of the claimant being successful in a claim under Article 63 of the SDO, or under Article 55 of the Order (unauthorised deductions and payments) [or for breach of contract under the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994].
REMAINING ISSUES
5. Having considered the evidence insofar as same related to the remaining issues before it, the tribunal made the following findings of fact on the balance of probabilities:-
(i) Anne Marie Kennedy commenced a hair salon business known as Ciseaux Hair Design in September 2005. The claimant was employed from 2005/2006, initially as a junior hair stylist, and latterly as a senior hair stylist. The claimant, who was never provided with a written contract, worked on Wednesdays, Fridays and Saturdays amounting to 24 hours. She commenced maternity leave on 12 June 2012.
(ii) At all times material to this claim, the claimant was paid in cash except for a period of three weeks when Anne Marie Kennedy and her husband were on holiday when she received payments in the form of post-dated cheques.
(iii) The tribunal was shown daily sheets prepared by Joe Kennedy relating to the payment of wages. For some inexplicable reason, these sheets were completed in pencil although there is no evidence before the tribunal to show that any material entries were erased or amended in relation to the claimant’s claim. The claimant claimed that she did not receive statutory maternity pay for weeks commencing 11 and 18 June 2012. In this regard she referred to two “P11” deduction forms for PAYE purposes, one of which referred to BACS payments and the other to cash. However the tribunal was satisfied despite the unsatisfactory nature of some aspects of the “P11” forms, that wage slips were provided for the two weeks claimed for and that there is insufficient evidence to enable the tribunal to conclude on the balance of probabilities, (apart from the jurisdictional issue, and the unexplained failure of the claimant to present a claim within time), that there is any basis for a claim for two weeks outstanding statutory maternity pay.
(iv) The tribunal considered the evidence from both the claimant and the respondent relating to the claimant’s allegations during her maternity leave. She received a text message from the respondent stating “Ha ha, we are all going to the bar – treat on me ha ha” during her sick leave. The fact that she was not specifically invited to the bar, is not entirely surprising in the circumstances.
(v) There was also confusion as to whether the claimant was living at her mother’s address or in an apartment with her boyfriend. Again, the tribunal does not attach any particular significance to this in the context of the claimant’s claim, or to the fact that members of her family collected her wages. The respondent did not pay wages into the claimant’s bank account directly as the system used was for the payment of wages in cash to all members of staff. Moreover, part of the reason why cheques were not used was to avoid further expense.
(vi) The tribunal does not attach any significant weight, in the context of the claim being made, to the claimant’s allegations relating to events of 31 January 2013 and the collection of keys to open the salon or to her allegation that she was made to feel unwelcome when she subsequently visited the salon. The tribunal is satisfied that the claimant was a very competent senior hair stylist and that it was the respondent’s intention and desire to have her back working in the salon after her maternity leave. She was viewed by the respondent as being more competent and efficient than “Sharon” who covered her duties when she was on maternity leave. She was certainly considerably more competent than a junior hair stylist who would also have had to change her hours to Friday night in order to help facilitate the claimant’s return to work after maternity leave, given the claimant’s desire not to work on Friday nights. The tribunal accepts that Friday was a busy night in the salon, that the claimant had her own dedicated clients, and that it was a night when the respondent was able to generate considerable income.
(vii) The value of the claimant to the business is illustrated by the fact that, after her resignation, customers who were attended to by her previously, effectively left the salon. The tribunal has reservations about the claimant’s credibility in relation to her dismissal of the evidence of two witnesses, Karen Flannagan and Caroline Caddell, both of whom testified to the fact that, before going off on maternity leave, the claimant had offered to do their hair at her home. She provided both with her mobile phone number on a Ciseaux business card. Both were credible witnesses. However, in fact neither chose to take up the claimant on her offer.
(viii) In her witness statement to the tribunal, the claimant recounted how she called into the salon on 9 February 2013 to discuss her return to work date. Anne Marie Kennedy did not have the exact date and informed the claimant that she would check the position with her book-keeper and revert to her. The claimant then spoke directly to the respondent’s book-keeper without the respondent’s knowledge or consent.
(ix) During a further visit to the salon in the course of the following week the claimant alleged that the respondent informed her that she would be cutting hours in the salon across the board and that if she reduced her hours to 16 hours, she would still be entitled to statutory benefits. The claimant further alleged that the respondent suggested that she should work late on Fridays and Saturdays. At this point the claimant alleges that she mentioned that she would have difficulty sourcing a childminder for the Friday evening. The tribunal is however not persuaded by the claimant’s evidence relating to the hours. It is satisfied, although one trainee hairdresser’s hours had been reduced and the salon seemed to be less busy, that there was no mention of the respondent cutting hours in the salon “across the board”. The tribunal is further satisfied that it was the claimant herself who indicated that she wished to come back initially for two days per week. It is evident that the respondent had a strong desire for her to work on Friday nights and that it was this issue which generated most of the circumstances and factual disputes preceding the presentation of the claim to the tribunal.
(x) The tribunal is satisfied that during the second meeting in February 2013, the respondent was quite firm in asserting her expectation that the claimant should work on Friday evenings and pointed out to her that all have children who have to be minded and that, in terms, she expected the claimant to sort out the childminding issue. The respondent further suggested to the claimant that in due course she might be able to work up to three days in the salon. It is also clear to the tribunal that during this meeting, which also involved a telephone conversation between the respondent and the claimant’s mother, the respondent was annoyed by the claimant’s claim that she had not been paid for annual leave and for two weeks’ statutory maternity pay. Had the respondent then clarified the position regarding the relevant payslips, which were ultimately produced to the tribunal, it would have been of considerable assistance in calming the atmosphere. The tribunal had no reason to doubt that the claimant was confused about holiday pay and the two weeks’ statutory maternity pay. The tribunal itself had considerable difficulty in understanding the position from the oral evidence and from the documentation produced. The claimant however withdrew any claim for holiday pay but persisted in her claim for two weeks’ statutory maternity pay.
(xi) Both P11 deduction forms for PAYE purposes did not reflect the fact that the claimant had worked Friday and Saturday 7 and 8 June 2012 and had received payment. This further illustrates deficiencies in the respondent’s documentation.
(xii) On 5 March 2013 the claimant wrote to the respondent in the following terms:-
“5 March 2013
Hi Anne Marie
As I will be working 16 hours when I return to work I need to get a copy of my P11 form from the 6th April 2012 so I can claim my benefits.
I am finding it difficult to get a childminder for the late night on Friday it would be easier if I could work a normal day to 5.30 pm – do you think this would be possible?
I also need to know what leave I have left so I can plan my holidays etc.
Many thanks.
Shauna”
(xiii) The tribunal is also satisfied that the respondent did not refer to the claimant as suffering from post natal depression, as alleged by her.
(xiv) The tribunal was referred to a number of text messages between the parties. As a result of one such message from the respondent a further meeting was held with the claimant in the salon on 7 March 2013 to discuss the claimant’s hours of work. The tribunal is satisfied that initially the claimant was offered her original 24 contracted hours. However she did not wish to work such hours. She pointed out that she was unable to work on a Friday night and was offered the possibility of working a half day on Friday and all day Saturday, which, the claimant discovered, amounted to 15 hours per week and not the 16 hours she needed in order to reach her benefits entitlement.
(xv) On 11 May 2013, the claimant wrote to the respondent in the following terms:-
“11 May 2013
Dear Ann Marie
Please find enclosed a sick line for a further month. I am hoping to return to work after this and I would be grateful if you could let me know what hours and days you can offer me. To avoid any confusion I would be grateful if you could confirm this in writing. By the way can you inform Elaine that the correct spelling of my name is Shauna. This is to avoid any confusion with HMRC.
Many thanks.
Shauna”
(xvi) The tribunal is satisfied that except for the reference to 9 March 2013 (which should read 7 March 2013) the respondent’s response to the claimant dated 15 May 2013 correctly reflects the position. It reads as follows:-
“15th May 2013
Dear Shauna
I refer to the above and to your letter dated 11th May 2013.
I would confirm the following:-
On the 9th March 2013, you came in to the Salon to discuss your hours.
Your original contracted hours of 24 was offered to you which were Wednesday, Friday and Saturday. You stated that you didn’t want these hours.
We then discussed different options in hours which were half day Wednesday, half day Friday and all day Saturday which amounted to 15 hours.
You stated that these hours did not suit you and said no.
The next offer that was made to you was all day Wednesday and all day Saturday which again amounted to 15 hours. Once again, you stated that “No, this didn’t suit” and that you didn’t want to do a Friday night.
You communicated again by text on 11th March 2013 that this would suit and in the same conversation you refused saying that this didn’t suit because it would interfere with your benefits.
In this message, you mentioned that it was only 15 hours and you needed 16 hours.
You indicated by text message on 12th March 2013 that you would be in to work your contracted hours which was Wednesday full day, all day Friday (late night) and all day Saturday (which amounts to 24 hours).
On the 13th March 2013, you were due to start work but phoned in stating that you were sick.
You proceeded to send in three sick lines (the last line dated 9th May 2013 (received on Saturday 11th May 2013 for a period of 4 weeks. You mentioned that you would be in to work after this.
As discussed on the 12th March 2013 in your text message, I would again reiterate that it was agreed between us that you would come in and work your contracted hours (which includes a late night (Friday) totalling 24 hours.
Yours sincerely”
The text referred to in the above correspondence from the claimant dated 12 March 2013 reads as follows:-
“I will be in tomorrow to work my contracted hours.”
(xvii) The claimant, who was due to return to work on 13 March 2013, telephoned in sick and subsequently submitted a sick line for four weeks. She then submitted a series of further sickness certificates. She did not in fact return to work prior to her resignation. The tribunal was also shown a report from her General Practitioner received on 4 March 2014 relating to her medical condition. The claimant subsequently presented a grievance on 31 May 2013 and a formal flexible working request on 19 June 2013. It is evident from the medical evidence before the tribunal that the claimant was suffering from stress-related problems before either of these dates. The General Practitioner’s report records how she attended the medical practice on 14 March 2013 with stress-related symptoms and “described problems returning to work where there was no provision for her requirements for childcare”.
(xviii) The tribunal carefully considered the oral and documentary evidence leading up to and including the grievance hearing held on 2 August 2013. It is common case that the respondent called the claimant a liar in the course of the grievance hearing in response to her suggestion that Anne Marie Kennedy wanted to cut her hours. The respondent’s notes of the grievance meeting provide headings for the various grievances namely, hours of work, annual leave/maternity leave, wages, and communication difficulties. It is recorded in those notes that:-
“Shauna feels that the 2½ hours which she cannot do could be absorbed by existing staff levels as a junior member of staff had recently qualified. Anne-Marie addressed the point by stating that the junior stylist would not have the experience to deal with clients as she was not up to speed with cutting compared to a senior stylist. She also stated that the junior stylist did not work on a Friday evening and that she was requesting we move her, when she works late on a Thursday evening as colourist for senior stylists. Anne-Marie explained that the needs of the business is paramount in all this and that all the other senior stylists had children and were able to cover one late evening per week. The needs of the business and the other stylists rights could not be jeopardised solely to accommodate Shauna”.
(xix) The claimant subsequently resigned. In her resignation letter, dated 2 August 2013, posted to the respondent on 28 August 2013, and received by the respondent on 29 August 2013, she states:-
“Dear Anne Marie
I refer to your letter of 16th August enclosing minutes of our meeting on 2nd August. I believe that through your conduct you have breached the implied bond of trust and confidence that I am entitled to expect in an employer. This view was confirmed by your conduct at our recent meeting in which you declined to even look me in the eye and accused me of telling lies about matters that were entirely true. You have in addition refused to allow me to return to work on the same terms and conditions as I had previously enjoyed, have tried to force me to work at a time you know that I am unable to given my child minding responsibilities, deducted and declined to properly account for monies due and owing to me and have now accused me of steering clients away from the business.
In those circumstances I am writing to inform you of my resignation with immediate effect and of the fact that I intend to seek redress in an industrial tribunal.
Yours sincerely”
The tribunal observes that there is no specific mention of unlawful discrimination on the ground of sex in this resignation letter.
THE LAW
6. (1) The law in relation to the claimant’s claims is adequately set out in the written submissions attached to this decision. These include relevant extracts from Harvey on Industrial Relations and Employment Law.
(2) BURDEN OF PROOF
(i) In Igen Ltd (formerly Leeds Carers Guidance) and Others v Wong, Chamberlains Solicitors and Another v Emokpae; and Brunel University v Webster [2006] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race and disability discrimination. This guidance is now set out at Annex to the judgment in the Igen case. The guidance is not reproduced but has been taken fully into account.
(ii) The Tribunal also considered the following authorities, McDonagh and Others v Hamilton Thom Trading As The Royal Hotel, Dungannon [2007] NICA, Madarassy v Nomura International Plc [2007] IRLR 246 (“Madarassy”), Laing v Manchester City Council [2006] IRLR 748 and Mohmed v West Coast Trains Ltd [2006] UK EAT 0682053008. It is clear from these authorities that in deciding whether a claimant has proved facts from which the Tribunal could conclude in the absence of an adequate explanation that discrimination had occurred, the Tribunal must consider evidence adduced by both the claimant and the respondent, putting to the one side the employer’s explanation for the treatment. As Lord Justice Mummery stated in Madarassy at paragraphs 56 and 57:-
“The Court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the Tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.
“Could conclude” in s.63A(2) must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory “absence of an adequate explanation” at this stage…, the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by s.5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.”
(iii) The Tribunal received valuable assistance from Mr Justice Elias’ judgement in the case of London Borough of Islington v Ladele and Liberty (EAT) [2009] IRLR 154, at paragraphs 40 and 41. These paragraphs are set out in full to give the full context of this part of his judgement.
“Whilst the basic principles are not difficult to state, there has been extensive case law seeking to assist Tribunals in determining whether direct discrimination has occurred. The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities:
(1) In every case the Tribunal has to determine the reason why the claimant was treated as he was. As Lord Nicholls put it in Nagarajan v London Regional Transport [1999] IRLR 572, 575 – ‘this is the crucial question’. He also observed that in most cases this will call for some consideration of the mental processes (conscious or sub-conscious) of the alleged discriminator.
(2) If the Tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.576) as explained by Peter Gibson LJ in Igen v Wong [2005] IRLR 258, paragraph 37.
(3) As the courts have regularly recognised, direct evidence of discrimination is rare and Tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC). These are set out in Igen v Wong. That case sets out guidelines in considerable detail, touching on numerous peripheral issues. Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is. The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature. The first stage places a burden on the claimant to establish a prima facie case of discrimination:-
‘Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer.’
If the claimant proves such facts then the second stage is engaged. At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground. If he fails to establish that, the Tribunal must find that there is discrimination. (The English law in existence prior to the Burden of Proof Directive reflected these principles save that it laid down that where the prima facie case of discrimination was established it was open to a Tribunal to infer that there was discrimination if the employer did not provide a satisfactory non-discriminatory explanation, whereas the Directive requires that such an inference must be made in those circumstances: see the judgment of Neill LJ in the Court of Appeal in King v The Great Britain-China Centre [1991] IRLR 513.)
(4) The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably. That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee. So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one. As Lord Browne-Wilkinson pointed out in Zafar v Glasgow City Council [1997] IRLR 229:-
‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.’
Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl v Law Society [2004] IRLR 799, paragraphs 100, 101 and if the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn. As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself – or at least not simply from that fact – but from the failure to provide a non-discriminatory explanation for it. But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.
(5) It is not necessary in every case for a Tribunal to go through the two-stage procedure. In some cases it may be appropriate for the Tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test: see the decision of the Court of Appeal in Brown v Croydon LBC [2007] IRLR 259 paragraphs 28-39. The employee is not prejudiced by that approach because in effect the Tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.
(6) It is incumbent on a Tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya v University of Oxford [2001] IRLR 377 esp paragraph 10.”
(7) As we have said, it is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated. The proper approach to the evidence of how comparators may be used was succinctly summarised by Lord Hoffmann in Watt (formerly Carter) v Ahsan [2008] IRLR 243, a case of direct race discrimination by the Labour Party. Lord Hoffmann summarised the position as follows (paragraphs 36-37):
‘36. The discrimination … is defined … as treating someone on racial grounds “less favourably than he treats or would treat other persons”. The meaning of these apparently simple words was considered by the House in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285. Nothing has been said in this appeal to cast any doubt upon the principles there stated by the House, but the case produced five lengthy speeches and it may be useful to summarise:
(1) The test for discrimination involves a comparison between the treatment of the complainant and another person (the “statutory comparator”) actual or hypothetical, who is not of the same sex or racial group, as the case may be.
(2) The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in either case should be (or be assumed to be), the same as, or not materially different from, those of the complainant …
(3) The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a tribunal may infer how a hypothetical statutory comparator would have been treated: see Lord Scott of Foscote in Shamoon at paragraph 109 and Lord Rodger of Earlsferry at paragraph 143. This is an ordinary question of relevance, which depends upon the degree of the similarity of the circumstances of the person in question (the “evidential comparator”) to those of the complainant and all the other evidence in the case.
37. It is probably uncommon to find a real person who qualifies … as a statutory comparator. Lord Rodger’s example at paragraph 139 of Shamoon of the two employees with similar disciplinary records who are found drinking together in working time has a factual simplicity which may be rare in ordinary life. At any rate, the question of whether the differences between the circumstances of the complainant and those of the putative statutory comparator are “materially different” is often likely to be disputed. In most cases, however, it will be unnecessary for the tribunal to resolve this dispute because it should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator. If the tribunal is able to conclude that the respondent would have treated such a person more favourably on racial grounds, it would be well advised to avoid deciding whether any actual person was a statutory comparator.’
The logic of Lord Hoffmann’s analysis is that if the tribunal is able to conclude that the respondent would not have treated the comparator more favourably, then again it is unnecessary to determine what are the characteristics of the statutory comparator. This chimes with Lord Nicholls’ observations in Shamoon to the effect that the question whether the claimant has received less favourable treatment is often inextricably linked with the question why the claimant was treated as he was. Accordingly:
‘employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was’ (paragraph 10).
This approach is also consistent with the proposition in point (5) above. The construction of the statutory comparator has to be identified at the first stage of the Igen principles. But it may not be necessary to engage with the first stage at all’”.
(iv) The Tribunal also received considerable assistance from the judgment of Lord Justice Girvan in the Northern Ireland Court of Appeal decision in Stephen William Nelson v Newry and Mourne District Council [2009] NICA 24. Referring to the Madarassy decision (supra) he states at paragraph 24 of his judgment:-
“This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude in the absence of adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable [2009] NICA 8 Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The Tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination”.
SUBMISSIONS
8. The tribunal carefully considered the written Submissions from both representatives which are annexed to this decision. It also carefully considered brief oral submissions made before it on 6 March 2013.
CONCLUSIONS
9. The tribunal, having carefully considered the evidence together with the submissions, and having applied the principles of law to the findings of fact, concludes as follows:-
(1) In deciding whether the claimant has proved facts from which the tribunal could conclude, in the absence of an adequate explanation, that discrimination had occurred, the tribunal must consider evidence adduced by both the claimant and the respondent, putting to one side the employer’s explanation for the treatment. In the judgement of Lord Justice Mummery in Madarassy he refers to the need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by (Article 3 of the Order); and available evidence of the reasons for the differential treatment.
In the case before this tribunal the claimant relied on a hypothetical male comparator.
(2) The tribunal is satisfied that the respondent’s representative has correctly articulated the nature of the proper comparison in relation to a hypothetical male comparator as follows:-
Would the respondent have permitted a man to vary his hours of work so that upon his return from a period of absence he was no longer required to work a late night in circumstances where that man was a senior stylist and such a variation would have resulted in reshuffling staff and moving a junior stylist to cover the shift?
(3) The tribunal’s approach has to be informed by the need to stand back and focus on the issue of discrimination. It is not necessary in every case for a tribunal to go through the two stage Burden of Proof procedure. In some circumstances it may be appropriate for the tribunal simply to focus on the reason given by the respondent and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under Stage I of the Igen test. The claimant is not prejudiced by this approach because in effect the tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.
(4) The tribunal is satisfied, in this case, that it has not been shown that a hypothetical comparator would have been treated better than the claimant. Apart from this, it is not satisfied that the reason for the less favourable treatment accorded to the claimant was on the ground of her sex. It concludes that the claimant has not therefore proved facts from which the tribunal could conclude in the absence of an adequate explanation that unlawful discrimination on the ground of sex had occurred.
(5) Apart from the insufficient evidence before the tribunal to constitute such a claim, as referred to in paragraph 5(iii) of this decision, the tribunal is not satisfied, pursuant to Article 55(4) of the Order, that it was not reasonably practicable in the sense of not being reasonably feasible for the claimant to have presented her complaint to the tribunal within three months from end of week commencing 18 June 2012 when the last alleged deduction of statutory maternity pay was made. Even if the tribunal were to consider the claimant’s claim during her oral evidence that she thought that the two weeks’ pay would have been paid at the end of her maternity leave, it was still reasonably practicable for her to have presented her claim to the tribunal within three months thereafter and no reason has been given as to why any extension of time should be granted.
(6) As the claimant has not succeeded in her sex discrimination claim, her claim in respect of the respondent’s failure to provide written particulars of terms and conditions of employment cannot be considered pursuant to Article 27 of the Employment (Northern Ireland) Order 2003.
(7) In relation to the respondent’s alleged failure to provide itemised pay statements, the tribunal’s finding of fact is that such pay statements were provided at all material times relevant to the claims made by the claimant. In any event, the tribunal has no jurisdiction to consider such a claim under Article 43(4) of the Order as the relevant time period for such a claim must commence with the date on which the employment ceased. The claim was presented to the tribunal prior to that event.
(8) The claimant’s claims are therefore dismissed in their entirety.
Employment Judge
Date and place of hearing: 3-6 March 2014, Belfast.
Date decision recorded in register and issued to parties:
