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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Smyth v Gavin Hawkins ARH Enterprises Ltd [2014] NIIT 173_14IT (01 August 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/173_14IT.html
Cite as: [2014] NIIT 173_14IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 173/14
CLAIMANT: Francis Gerard Smyth
RESPONDENTS: 1. Gavin Hawkins
2. ARH Enterprises Ltd
DECISION
(A) The claimant’s discriminatory dismissal claim, under the Disability Discrimination Act 1995 (“the DDA”) against ARH Enterprises Ltd (“the Company”) and against Mr Gavin Hawkins (“Mr Hawkins”) is well-founded and it is ordered that the Company and Mr Hawkins shall pay to the claimant, on a joint and several basis, the sum of £11,120 in respect of that claim.
(B) The claimant’s claim of discriminatory dismissal, brought under the age discrimination legislation, is not well-founded. Accordingly, that claim is dismissed.
(C) The claimant’s wages claim is dismissed. (But see paragraph 13 below).
(D) The claimant’s in respect of holiday pay is dismissed. (But see paragraph 15 below).
(E) The claimant’s claim of unfair dismissal is dismissed.
Constitution of Tribunal:
Employment Judge (sitting alone): Employment Judge Buggy
Appearances:
The claimant was represented by Mr Steven Harvey.
Both of the respondents were debarred from participating in the proceedings, because no responses had been presented in these proceedings.
REASONS
1. The claimant was employed in the Fort Bar, in Springfield Road, Belfast, from 2001 until November 2013. During his period of employment there, there had been various changes of ownership. Ultimately, from November 2012 onwards, the bar was leased to the first-named respondent, Mr Hawkins or to the Company. However, from then onwards, the claimant was employed, not by Mr Hawkins, but by the Company (which, for practical purposes, was controlled by Mr Hawkins).
2. I am satisfied that, on each occasion on which the identity of the employer of the staff of the Fort Bar changed, throughout the period from the commencement of the claimant’s employment there, and including the change-over to the Company in 2012, there was a “relevant transfer” within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations (“TUPER”), and that, as a consequence, in the context of the present case, the claimant must be treated as though he had been employed by the Company throughout the period from 2001 until the date of the termination of his employment.
3. From November 2012 onwards, Mr Hawkins behaved as though he was the claimant’s employer. That is why the Company was originally not a respondent to these proceedings.
4. On the first day of the main hearing of these proceedings, I noted that, from the time when Mr Hawkins first became “the boss”, the claimant was paid by the Company. For that reason, I invited the claimant to consider whether he wished me to order the joinder of the Company as a respondent to these proceedings. He did want the Company joined as a respondent, and that was done.
5. In this Decision, “the Acts”, means any acts or omissions in respect of which compensation is claimed, and only such acts or omissions.
6. In these proceedings, the Acts were as follows:
(1) Alleged underpayments of wages.
(2) An alleged underpayment of holiday pay.
(3) The (constructive) dismissal of the claimant.
7. In relation to each Act, the cause of action, or the causes of action, is/are as follows:
(1) In relation to wages, the cause of action is breach of contract.
(2) In relation to holiday pay, the cause of action is breach of contract.
(3) In relation to the dismissal, the causes of action are:
(a) unfair dismissal, contrary to the unfair dismissals legislation;
(b) discriminatory dismissal, contrary to the DDA; and
(c) discriminatory dismissal, contrary to the age discrimination regulations.
The evidence
8. The oral evidence consisted of the testimony of the claimant and of Mr Harvey. I also saw a bundle of documents and some miscellaneous documents.
9. The claimant was ably represented in these proceedings by Mr Harvey, despite Mr Harvey’s limited experience in representing parties at tribunal.
The facts
10. I am satisfied that the account of events set out in Appendix 1 of the claimant’s industrial tribunal claim form is in substance correct. (That account is summarised in the following sub-paragraphs). I made the following findings of fact. (For ease of reference, and in order to minimise avoidable duplication, I have also made findings of facts elsewhere in this Decision).
(1) The claimant worked in the Fort Bar for about 12 years.
(2) He was initially employed by a Mr Frank Gilmartin, until Mr Gilmartin ceased to run the Bar, in late 2006. During his time as an employee of Mr Gilmartin, the claimant suffered a heart attack and was diagnosed with diabetes and had a hernia repair. At that time, the claimant and Mr Gilmartin came to an agreement, whereby the claimant’s shift pattern would be changed to days (in order to allow the claimant to work in a lower stress environment and to allow time for his medication), on the basis that the extent of the claimant’s weekly hours, and, consequentially, his salary, would be unaffected by this adjustment. That arrangement continued until Mr Gilmartin ceased to run the bar.
(3) In late 2006, the ownership of the Fort Bar was taken over by a Mr Bill Woolsey, who then leased the premises to a Ms Deirdre Scanlon. When Ms Scanlon came into control of the Bar, the claimant raised the issue of his previously agreed adjustments. She agreed to continue them. They also continued when Ms Scanlon handed over control of the Bar to a Mr Brendan O’Hare (from July 2011 until March 2012). The adjustments continued also when a Mr Sean Donnelly and a Mr Peter Laverty took over control of the Bar from March 2012 until November 2012.
(4) In November 2012, the Fort Bar was leased either to Mr Hawkins or to the Company. On his arrival at the Bar, Mr Hawkins told the claimant that he (Mr Hawkins) could no longer afford to employ him in his role as a manager. He attempted to terminate the claimant’s employment there and then. The claimant informed Mr Hawkins, at this point, of his (the claimant’s) rights as an employee, and of the legislation relating to TUPE. In response, Mr Hawkins conceded the points and agreed to continue the claimant’s employment in the Bar. However, it was at that point mutually agreed that the claimant would relinquish his managerial role and would, from then onwards, be employed as an ordinary member of staff.
(5) Following on from this, the claimant once again raised the issue of the adjustments which had been agreed with all previous employers from Mr Gilmartin onwards. Mr Hawkins acknowledged that the adjustments were in place and he then purported to agree that they would continue under his management. However, in reality, he never continued those adjustments.
From soon after Mr Hawkins first took on the management of the Fort Bar, the claimant’s hours were reduced unilaterally, and his previously agreed shift pattern (as agreed with Mr Gilmartin) was unilaterally altered.
(6) In April 2012, Mr Hawkins was in prison. From prison, he sent out a letter (“the Letter”), which was described in the claimant’s industrial tribunal claim form as using “abusive language and aggressive tone”. The Letter was as follows:
“Zara & kim
read this out to the staff!!!
Johnny is away and if the bar doesn’t pick (up stock etc) more will follow him!!! Is that clear enough? Any of you not comprehend this? If you can’t understand it leave now and come back and see me in eight weeks!!!
My head is fried listening to the aul dolls s**** (he’s doing this she’s doing that).
The story is the stocks f****** brutal and I want answers & explanations.
I’ve had my fill of the d****** about if you’re not up for it go away & I will get people that are!!!
Kim and Tony are keeping an eye on things [...]. I hear Gerry isn’t happy about Tony. Johnny said to me that Gerry said and I quote tell Gavin I’m not happy about Tony being in here.
Well I’m not here to make people happy I’m trying to make money for us all if you don’t like it leave now!!!
Now I’ve enough on my plate at present without yous my so called friends & staff f****** me about I’ve all the stock reports etc and you will all go if it doesn’t improve so you all know the craic any problems drop me a letter or come up on a visit I don’t know which ones telling me the truth and which one isn’t but I do know that I will sort things out the way I want them!!!
Now knuckle down everyone its all common sense the front door is there if yous don’t like it. Grow Up and Wise Up 8 weeks is all yous have to do.
Every number needed is in the office so why am I hearing there’s problems with the TVs ring the f****** TV men!!!
Zara will cover all Johnny’s shifts is that clear? Is there any problem with that?
Conor and Seaneen will do Friday nights sort the rest out between yous. Now Johnny’s gone you will all have to take turns at weekend nights (all of you) yes (all of you) not some or one of you!!!
No more staff drink Thats No More staff drink anyone caught taking drink is gone is that hard to understand?
Yous have no idea how p***** off I am over this petty b***** so get it sorted its f****** played out!!!
I’m out in 8 weeks so please give my head peace.
Gavin”
The Letter is indicative of an abusive, confrontational and disrespectful style of management. I note that the Letter’s messages were intended for all the staff, not just for the claimant.
(7) On 1 June 2013, Mr Hawkins suspended the claimant, while asking him to submit medical evidence for the period of his suspension. The claimant refused to submit any medical evidence, as he stated that he was not sick.
(8) The challenged decision to suspend was then lifted. The claimant then returned to work. Then the claimant went on two weeks’ holiday which had previously been booked.
(9) Ms Jackie McGrattan, acting as a representative of Mr Hawkins, then withheld the claimant’s holiday pay. Eventually, after being challenged about the withholding of the holiday pay, she did pay one week’s holiday pay.
(10) Shortly after his return from holiday, the claimant went on a period of sick leave. Throughout this time of sickness, the claimant’s sick pay was withheld at sporadic intervals, on various spurious pretexts.
(11) On 4 July 2013, the claimant lodged a written grievance in relation to the matters mentioned above.
(12) A grievance meeting was held on 6 August 2013. However, the grievance was not thoroughly, or fairly, addressed by Management.
(13) Later during August 2013, the claimant was informed by Ms McGrattan that he was not allowed to enter the Bar or to speak to the customers, and he was told by her that any communication with Management must be carried out from outside the premises.
(14) On 17 September 2013, the claimant went to the Bar to get his statutory sick pay. Ms McGrattan ushered him on to the street. She handed him one week’s pay. He asked her for a second week of SSP, which he was due. She said that was all he was going to get. He then immediately resigned, with immediate effect. He told her he couldn’t take it any more. She advised him to come back the next week to get his statutory sick pay, his holiday pay and his P45.
(15) When his P45 subsequently came, it was dated 17 September 2013.
(16) All of the relevant inappropriate conduct, which is specified in the preceding sub-paragraphs, was conduct which was carried out by Mr Hawkins directly or was conduct which was carried out by others at his direction. All of that conduct was carried out on behalf of the Company, or with its explicit or implicit approval.
Age discrimination
11. No evidence has been provided by or on behalf of the claimant that tends to show that the claimant’s age was a reason for any of the acts of mistreatment which are described above. Accordingly, the claimant’s age discrimination claim must be dismissed.
The wages claim
12. The claimant’s wages claim is a breach of contract claim. I do not have jurisdiction to entertain that claim, because it was not brought within three months of the effective date of termination of the claimant’s contract of employment, and it was reasonably practicable to bring that claim within that period. (See paragraph 26 below).
13. However, it should be noted that the claimant still has ample time to bring a breach of contract claim, in respect of wages, in the County Court.
The holiday pay claim
14. The holiday pay claim is also a breach of contract claim. Like the wages claim, the holiday pay claim cannot be pursued in the industrial tribunals, because it was not brought within three months of the effective date of termination of the claimant’s contract of employment with the Company and it was reasonably practicable to bring that claim within that period of three months. (See paragraph 26 below).
15. However, it should be noted that the claimant still has ample time to pursue a holiday pay claim in the County Court.
The unfair dismissal claim
16. The primary time-limit in respect of unfair dismissal claims is contained in Article 145 of the Employment Rights (Northern Ireland) Order 1996 (“ERO”). Paragraph (2) contains the relevant time-limit. According to that paragraph, an industrial tribunal:
“... shall not consider a complaint under this Article unless it is presented to the tribunal -
(a) before the end of the period of three months beginning with the effective date of termination, or
(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months”.
17. Accordingly, Article 145(2) contains what amounts to two time-limits:
(1) a primary time-limit of three months and
(2) a secondary time-limit, which is contained in sub-paragraph (b) of paragraph (2).
18. However, it must be noted that the secondary time-limit is only available if I am satisfied that “it was not reasonably practicable” for the complaint to be presented with the primary time-limit.
19. For the purposes of Article 145, “the effective date of termination”, in the circumstances of this case, means the date on which the claimant resigned. (See sub-paragraph (b) of paragraph (1) of Article 129 of ERO).
20. Unfortunately, the unfair dismissal claim has to be dismissed, because it was not brought within the primary unfair dismissal limitation period and it was reasonably practicable for it to be brought within that period.
The time-limit issues
21. The claimant resigned from his employment on 17 September 2013, with effect from that same date. The industrial tribunal claim form in these proceedings was not presented until 21 January 2014, just over four months later.
22. The reason for the delay was that, at the time, Mr Harvey thought that there was a six month time-limit for bringing unfair dismissal claims and for bringing industrial tribunal breach of contract claims.
23. Accordingly, the reason for the delay was ignorance of the law. From a human point of view, that seems to be an entirely understandable ignorance. However, there is clear case law, which I feel obliged to follow, which strongly indicates that, if you fail to make your unfair dismissal tribunal claim within the primary time-limit, and if you fail to do so because of ignorance as to the duration of that primary time-limit, then, as a general rule, that ignorance does not render it not “reasonably practicable” to bring the claim within the primary time-limit.
24. I see nothing about the circumstances of this case to indicate that the general rule (as described in the last preceding paragraph) is inapplicable, or can be treated as inapplicable.
25. In the immediately preceding paragraphs, I have set out the unfair dismissal claims time-limit, in considerable detail.
26. The time-limit in respect of breach of contract claims is, for all practical purposes, identical to the time-limit in respect of unfair dismissal claims. Again, case law constrains me to conclude that the mistake about the time-limit, in the circumstances of this case, is not a reason which renders it “not reasonably practicable” to present the relevant breach of contract claims within the primary time-limit.
27. The wages and holiday pay claims could have been pursued as unlawful deduction of wages claims. However, the time-limit provisions in respect of unlawful deduction of wages are, for all relevant practical purposes, identical to the time-limit provisions in respect of breach of contract claims. (See Article 55 of ERO).
28. The position in relation to time-limits under the Disability Discrimination Act (“the DDA”) is however very different from the time-limit provisions in respect of unfair dismissal and breach of contract.
29. In the DDA, the time-limit provisions are to be found in paragraph 3 of Schedule 3 of the 1995 Act. The effect of sub-paragraphs (1) and (2) of paragraph 3 is as follows:
(1) An industrial tribunal must not consider a complaint “... unless it is presented before the end of the period of three months beginning when the act complained of was done”.
(2) A tribunal may however consider any such complaint which is out of time “if, in all the circumstances of the case, it considers that it is just and equitable to do so”.
30. In the circumstances of this case, I have no hesitation in concluding that it is just and equitable to consider the claimant’s DDA discrimination complaint, even though it is out of time. I have arrived at that conclusion, having taken account of all of the matters which are usually taken into account in deciding whether or not to consider to extend an employment discrimination primary time-limit. (In this connection, see paragraphs 49-53 of my Decision in Vitkauskas v Northern Ireland Transport Holding Company (Case reference 1234/11, decision issued on 27 January 2012).
31. In deciding to extend the time-limit in relation to the DDA claim, I have taken account, in particular, of the following factors. First, the period of delay was quite short. Secondly, it is unlikely that the respondents will suffer any prejudice as a result of the late bringing of the proceedings (as distinct from suffering prejudice from the claimant’s ability to bring the proceedings at all). Thirdly, I have borne in mind that ignorance as to the time-limit is not a very good reason for delay.
DDA liability
32. Section 4(2) of the DDA makes it unlawful for an employer to discriminate against a disabled person “by dismissing him”.
33. Paragraph (b) of subsection (5) of section 4 makes it clear that, in the context of section 4(2), a reference to “dismissing” includes a reference to the termination of that person’s employment, by the giving of notice by that person, in circumstances “... such that he is entitled to terminate it without notice by reason of the conduct of the employer”. In other words: The DDA does not just make it unlawful to discriminatorily terminate the contract of employment of a disabled person by actually dismissing him: it also makes it unlawful to discriminatorily dismiss him constructively.
34. Accordingly, for the purpose of determining whether the claimant can succeed in his DDA dismissal claim, there are three main issues which have to be addressed. First, I have to determine whether or not at the relevant times, the claimant was a “disabled person” for the purposes of the DDA. Secondly, I have to determine whether or not the claimant was “constructively” dismissed. Thirdly, I have to determine whether any such dismissal was discriminatory.
35. I will deal with those three issues in the order indicated.
A disabled person?
36. I am satisfied that, at all relevant times, the claimant was a disabled person within the meaning of the DDA. I am so satisfied, against the following background and for the following reasons.
37. Subsection (1) of section 1 of the DDA provides that, subject to the provisions of Schedule 1 of that Act, a person has a disability, for the Act’s purposes, if he has a physical impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. Paragraph 4 of Schedule 1 of the Act provides that an impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the matters specified in sub-paragraph (1) of paragraph 4. Two of the matters specified in that sub-paragraph are “manual dexterity” and “ability to concentrate”.
38. The claimant told me, and I accept, that, for many years now, because of his diabetes, his sugar levels have become very high about once a month and, whenever they do become very high, he becomes tired and confused.
Constructive dismissal?
39. I am satisfied that the claimant was constructively dismissed. I am so satisfied, against the following background, and for the following reasons.
40. As “Tolley’s Employment Handbook”, 2013 Edition, points out (at paragraph 46.18):
“If an employer is in breach of a fundamental term of the contract of employment, the employee is entitled to leave the employment forthwith. Leaving the employment in those circumstances is known as “constructive dismissal ...”
41. In order for behaviour on the part of the employer to constitute a breach of a fundamental term of the contract of employment (in the sense in which that concept is being considered in paragraph 46.18 of Tolley), the relevant breach must be a “repudiatory” breach.
42. I have no doubt that the abusive conduct listed and referred to at paragraph 10 above constitutes a repudiatory breach of the contract of employment on the part of the Company.
43. I have no doubt that the claimant’s resignation was a reaction to that misconduct.
44. Accordingly, I am satisfied that the claimant’s resignation has to be treated as a constructive dismissal, for the purposes of section 4(2) of the DDA.
Discriminatory?
45. The third, and last, DDA liability issue is whether the relevant dismissal was a disability-discriminatory dismissal. I will now address that issue.
46. The DDA defines discrimination, for its purposes, as including direct disability discrimination. Subsection (5) of section 3A of the DDA provides as follows:
“(5) A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person”.
47. Section 17A(1C) of the DDA provides as follows:
“Where, on the hearing of [an industrial tribunal complaint of discrimination against an employer], the complainant proves facts from which the tribunal could, apart from this subsection, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act.
48. The catalogue of abuse and mistreatment, which is set out and referred to at paragraph 10 above, has to be considered against the following background.
(1) The claimant was a disabled person who, accordingly, had arrived at appropriate agreements with past employers, regarding reasonable adjustments. Mr Hawkins did not comply with those previous agreements.
(2) Neither of the respondents has participated in these proceedings.
I am sure that, when the catalogue of abuse and mistreatment is considered against that background, it constitutes proof of facts from which I could conclude, (even if subsection (1C) had never been enacted), in the absence of an adequate explanation, that the Company had “directly” discriminated against the claimant, by dismissing him.
49. The respondents have never provided any explanation of the kind envisaged in subsection (1C) of Section 17A.
50. For those reasons, and against that background, I conclude that the claimant’s constructive dismissal was a directly discriminatory dismissal (in the sense in which the term “direct discrimination” is used in the context of the DDA).
The DDA claim (remedies)
51. During the period ending with the date of the hearing, the discriminatory dismissal has not resulted in any financial loss to the claimant. The claimant obtained new employment very soon after he lost his job in the Fort Bar. His wages in the new employment are not substantially less than the wages which he received during the latter part of his period of employment in the Fort Bar.
52. However, the wages in his new employment are variable, and the extent of the claimant’s weekly hours of work in the new employment, in future, is far from guaranteed. I consider that the claimant’s future loss, in respect of dismissal, amounts to £2,425.
53. Throughout his long period of employment in the Fort Bar, the claimant had built up extensive statutory entitlements, both in relation to notice pay and in relation to redundancy pay. I considered it appropriate to compensate him in respect of the loss of those statutory entitlements which he sustained as a result of the discriminatory dismissal. I have decided to award him the sum of £300 in respect of that loss of statutory rights. The amount awarded in respect of future loss, as specified in the last preceding paragraph, includes that figure of £300.
54. I have no doubt that the claimant has suffered substantial injury to feelings as a result of the situation which made it necessary for him to resign from his employment in the Fort Bar. He had lengthy service in the Bar. While working in the Bar, he had built up a substantial circle of friends and acquaintances, and, for lengthy periods, had been very content in his work in that Bar. Therefore, when he lost his employment there, it caused him considerable distress. Against that background, and for those reasons, I award £8,000 for injury to feelings.
55. I have noted the provisions of the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 [SRNI 1996/581], as amended. I am not of opinion that, in relation to the relevant award, there are circumstances which have the effect that serious injustice will be caused to the Company by awarding interest in respect of the entire award or in respect of the entire period.
56. Applying the rules which are contained within those 1996 regulations, the position is as set out in the next following two paragraphs.
57. In respect of the injury to feelings aspect of this award, I award interest at 8% per annum from date of dismissal to date of calculation. That amounts to £533.
58. I award interest at 8% per annum in respect of the financial loss element of the claimant’s compensation throughout the duration of half the period from the date of termination of employment until the date of calculation. That element of interest amounts to £162.
Summary
59. Accordingly, the claimant is entitled to a total award of £11,120.
60. That award has two main elements: (1) the substantive award of £10,425 and (2) the interest on that award (which amounts to £695 in total).
Against whom?
61. The Company is liable in respect of the DDA compensation because it was the claimant’s employer and because of the effect of section 58(2) of the Act. Section 58(2) makes a principal liable for discrimination carried out by an agent in the course of the carrying out, by that agent, of an act which was authorised by the principal.
62. Mr Hawkins is personally liable under the DDA in respect of the discriminatory dismissal, because of the effect of section 57(1) of that Act. (See sub-paragraph (16) of paragraph 10 above).
63. The relevant liability, of the Company and of Mr Hawkins, is a joint and several liability.
64. In arriving at the conclusions set out at paragraphs 61-63 above, I have in particular had regard:
(1) to the findings of fact which are set out at paragraphs 3 and 4 above and
(2) to the findings of fact which are set out at sub-paragraphs (4) and (16) of paragraph 10 above.
65. In arriving at the conclusions set out at paragraphs 61-63 above, I have applied the statements of legal principle which are set out in the Employment Appeal Tribunal judgment in Bungay v Saini and Others, UKEAT/0331/10/CEA, especially at paragraphs 16-44.
Interest
66. This Decision itself attracts interest, pursuant to the Industrial Tribunals (Interest) (Northern Ireland) Regulations 1990.
Employment Judge:
Date and place of hearing: 7 April and 13 June 2014, Belfast.
Date decision recorded in register and issued to parties: