Industrial Tribunals Northern Ireland Decisions

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Cite as: [2014] NIIT 294_14IT

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 294/14

695/14

CLAIMANT: Brooke Watt

RESPONDENTS: 1. Lynsay Jones t/a Vermillion Hair Company

2. Alex Graham

3. Kimberley Boyd

DECISION

The unanimous decision of the tribunal is that the claims of unlawful discrimination, including claims of unlawful harassment, and the claims of constructive unfair dismissal and alleging a failure to provide statutory particulars of employment are all dismissed.

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mr A Burnside

Ms E McFarline

Appearances:

The claimant was represented by Ms R Best, Barrister-at-Law, instructed by John Boston & Company, Solicitors.

The respondents were represented by Mr O Friel, Barrister-at-Law, instructed by Crawford & Company, Solicitors.

1. The parties agreed that the first and second-named respondents, originally described as;-

(i) The Vermillion Hair Company; and

(ii) Lynsay Jones;

were better described jointly as the first-named respondent, ie:-

Lynsay Jones t/a Vermillion Hair Company;

and that the original third and fourth-named respondents were better described as the second and third-named respondents, ie:-

Alex Graham; and

Kimberley Boyd

The title of the claim was amended accordingly.

2. To reduce confusion, the first, second and third-named respondents will be referred to by name in this decision.

Background

3. The claimant alleged that from 18 June 2010 to 10 February 2014 she had been an employee of Ms Jones and that she had been employed throughout that period as a trainee hairdresser. Ms Jones alleged that she had not been an employee during the period from 18 June 2010 to 20 September 2013 and that during this period she had been a student on placement from a Further Education College (‘the College’). Ms Jones alleged that the claimant had first become an employee on 20 September 2013 and that she remained an employee for some five months until she resigned on 10 February 2014. The claimant lodged two tribunal claims. Her first claim (Case Reference No: 294/14) was signed by the claimant on 28 November 2013 but was not lodged in the Office of the Tribunals until 12 February 2014, two days after the date of the claimant’s resignation. The claimant claimed that she had been subjected to unlawful sex discrimination, unlawful sexual harassment and that she had suffered a breach of contract. She referred to several incidents. She named the current respondents and one other respondent, a Ms Chantelle McFerran. The claim against that particular respondent was subsequently withdrawn. The alleged incidents relied on by the claimant were as follows:-

“(i) That she had told Ms Jones on 6 November 2013 that she was pregnant and that she had also told Ms Jones that this information was to be kept private. Ms Jones had passed this information to Ms Graham who was, at all relevant times, her line manager. The claimant alleged that this was a ‘breach of confidence’. Ms Jones stated that she was never told to keep the information private. In any event, she stated she had to tell Ms Graham, the claimant’s manager, so that the claimant, who had suffered an earlier miscarriage, would not be given any unduly heavy work.

(ii) That, after suffering a second miscarriage, Ms Jones told her ‘you are only 20 years old, you should be on the pill and your partner should wrap it up’. Ms Jones stated that this referred to a sympathetic conversation. Ms Jones accepted that she had advised the claimant to go on the pill but she denied saying ‘your partner would need to wrap it up’.

(iii) That on 14 November 2013, Ms Graham asked her about her pregnancy. The claimant felt that this should have been kept private and that the enquiry was intrusive. Ms Graham stated that she had to know about the claimant’s pregnancy because she was her line manager and that this enquiry about her pregnancy was a sympathetic and normal enquiry.

(iv) That on 14 November 2013, in a ‘Secret Santa’ competition where staff were selected by chance to purchase a present for another member of staff, the claimant said ‘I don’t know what you would get me’. The claimant alleged that Ms Graham said ‘a pregnancy test’ (the first alleged comment). The claimant alleged that the issue was raised again and that Ms Boyd asked what she should get the claimant. The claimant alleged that Ms Graham stated ‘a packet of condoms and a pregnancy test’ (the second alleged comment). In her witness statement, but not in her tribunal claim form, the claimant referred to an additional comment, ie that Ms Graham later stated ‘get Brooke some condoms and a pregnancy test’ (the third alleged comment). Ms Graham accepts that the second alleged comment was made but denied ever making the other two comments alleged by the claimant.

(v) The claimant alleged that on 20 November 2013 Ms Jones laughed about these comments. Ms Jones denied the allegation.

(vi) On 22 November 2013, Ms Jones told a customer about the claimant’s pregnancy and miscarriage. Ms Jones stated that this was a customer who had known the claimant and with whom the claimant had discussed her earlier miscarriage.”

4. The claimant alleged unlawful harassment on the grounds of her gender and unlawful direct discrimination on the grounds of her gender and pregnancy.

5. The second claim form (Case Reference No: 695/14) was lodged by the claimant on 23 April 2014 and alleged constructive unfair dismissal. She also alleged that she had not received terms and conditions of employment and that statutory procedures had not been followed. The respondents denied that she had been left with no option but to resign and denied that she had been constructively or unfairly dismissed. The respondents stated that the claimant had left the employment of Ms Jones after a lengthy period of sick leave to take up a much higher paid post.

The hearing

6. The witness statement procedure was used. Witness statements were exchanged in advance of the hearing in accordance with directions. The witness statements took the place of oral evidence-in-chief. Each witness was sworn or affirmed, adopted their exchanged witness statement as their evidence-in-chief, and went immediately to cross-examination and re-examination.

7. The claimant gave evidence on her own behalf and called no witnesses. On behalf of the respondents, the tribunal heard evidence from Ms Jones, Ms Graham and Ms Boyd, together with evidence from Ms McFerran who had previously been a respondent.

8. The hearing was over two and a half days, 19 – 20 August 2014, finishing at 1.00 pm on 21 August 2014.

9. In the course of the cross-examination of the witnesses it became clear that one major issue for the tribunal to determine was the nature of the employment relationship (if any) between the claimant and Ms Jones between 18 June 2010 and 20 September 2013, and, in particular, to determine whether the claimant had been a student in receipt of an Education Maintenance Allowance funded by central government during that period. There was a lack of contemporaneous documentation and the claimant was unable to assist the tribunal further in that regard. The parties were allowed until 5.00 pm on 29 August 2014 to produce further documentation or further written argument on that point. The parties were also advised that if additional oral evidence was required, that could be accommodated.

10. The respondents’ solicitor produced a letter from DEL dated 28 August 2014 which referred to the claimant’s participation as a ‘non-waged trainee’ in Level 1 and Level 2 programmes and to her participation in an Apprenticeship NI Level 3 programme from 2 September 2013 as ‘waged employment’. The respondents’ solicitor also produced a letter dated 21 August 2013 from the College which referred to the claimant being a ‘trainee’ under the Training for Success Programme, funded by DEL, and that she received ‘a training allowance of £40 per week’. It also stated ‘she gained employment with Vermillion Hairdressing Salon on 2/9/13 ...’.

The claimant’s solicitor stated in a letter dated 1 September 2014, which attached several hundred pages of DEL documentation, that:-

“It is our understanding that Training for Success no longer includes Apprenticeship Training, which will be separately branded as Apprenticeship NI ... We submit that Miss Watt was an apprentice from at least September 2011 and therefore has the requisite service required to bring a claim for constructive dismissal.”

The DEL letter of 28 August 2014 makes it plain that the claimant’s participation in the Apprenticeship NI programme did not start until 2 September 2013 and it is difficult to see what point the claimant is making in the letter of 1 September 2014.

11. In any event, even though the tribunal made it plain at the end of the substantive hearing that it would reconvene, if necessary, no request for this was made by either party and none of the letters referred to above were challenged.

12. The further letters simply confirm, as hearsay evidence, what the tribunal would decide in any event, ie that the claimant had not been an employee of the first-named respondent until a date in September 2013. Before September 2013, she had been a student on placement. During that period she had received no wages, as an apprentice or otherwise, and had received EMA of £40.00 per week.

The panel met on 11 September 2014 to consider any further evidence or submissions that had been received and to reach a decision. This document is that decision.

Relevant law

Employee or student on placement?

13. Much of the case law in this area relates to the circumstances in which a person is an employee or self-employed, ie where the question is whether a person is on either a contract of service or a contract for services. None of the case law appears to be directly relevant to the present case. The issue in the present case is:-

“Whether the claimant had been a student on placement, or an employee of Ms Jones (the first-named respondent) in the period (which appears to be at least two years) before September 2013?”

This is a question which therefore has to be determined as a question of fact taking into account all the evidence. There is no case law directly on point.

14. The Supreme Court in the case of Autocleanz v Belcher [2011] UKSC 41 was dealing with whether or not workers for a car valeting company were employees or self-employed. The Supreme Court set out the general principles in deciding whether or not there had been a contract of employment. They referred to the case of Ready Mix Concrete (South East) Ltd v Ministry of Pensions & National Insurance [1968] 2 QB 497 and stated:-

“A contract of service exists if these three conditions are fulfilled –

(i) The servant agrees that, in consideration of a wage or other remuneration, he would provide his own work and skill in the performance of such service for his master.

(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master.

(iii) The other provisions of the contract are consistent with it being a contract of service ... Freedom to do a job either by one’s own hands or by another’s is inconsistent with a contract of service, though a limited or occasional power of delegation may not be.”

Harassment

15. Under Article 6(1) of the Sex Discrimination (Northern Ireland) Order 1976, harassment is defined in the following way:-

“A person subjects a woman to harassment if –

(a) he engages in unwanted conduct that is related to her sex or that of another person and has the purpose or effect –

(i) of violating her dignity; or

(ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her.”

16. According to Article 6(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.”

17. In the case of Nazir and Another v Asim [UKEAT/0332/09/RN] the EAT stated:-

“(68) There were, essentially, the following questions for the tribunal to answer in relation to each allegation of unlawful harassment. What was the conduct of Mr Nazir and Mr Aslam? Was it unwanted? Did it have the purpose of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her? Did it have the effect of doing so (bearing in mind that the express statutory requirement to apply an objective reasonable standard taking into account Mrs Asim’s own perception)?; and, finally, was the conduct ‘on the grounds’ of her race and sex as she alleged?

(69) We wish to emphasise this last question. The provisions to which we have referred find their place in legislation concerned with equality. It is not the purpose of such legislation to address all forms of bullying or anti-social behaviour in the workplace. The legislation therefore does not prohibit all harassment, still less every argument or dispute in the workplace; it is concerned only with harassment which is related to a characteristic protected by equality law – such as a person’s race and gender.

(70) In our judgment when a tribunal is considering whether facts have been proved from which it could conclude that harassment was on the grounds of sex or race, it is always relevant, at the first stage, to take into account the context of the conduct which is alleged to have been perpetrated on the grounds of sex or race. The context may, for example, point strongly towards or strongly against a conclusion that harassment was on the grounds of sex or race. The tribunal should not leave the context out of account at the first stage and consider it only as part of the explanation at the second stage, after the burden of proof has passed.”

18. In the case of Loosley v Moulton and Another [UKEAT/0469/04/DA] the EAT referred at Paragraph (32) to the case of MacDonald v Advocate General for Scotland [2003] IRLR 512 and quoted from that as follows:-

“15. A claim under the [SDA] cannot get off the ground unless the claimant can show she was harassed because she was a woman. A male employee may make office life difficult for a female employee, not because she is a woman, but because he objects to having anyone else in the office. He would be equally unwelcoming to a male employee. Harassment of a woman in these circumstances would not be sex discrimination.

16. In some cases there are suggestions of a different approach. It has been suggested that if the form of harassment is sexual, that of itself constitutes less favourable treatment on the grounds of sex. When the gender of the victim dictates the form of harassment, that of itself, it is said, indicates the reason for the harassment, namely, it is on the ground of the sex of the victim. Degrading treatment of this nature differs materially from unpleasant treatment inflicted on an equally disliked male colleague, regardless of equality of overall unpleasantness : see Lord President Emslie in Strathclyde Regional Council v Porcelli [1968] IRLR 134. Because the form of harassment is gender-specific, there is no need to look for a male comparator. It would be no defence to a complaint of sexual harassment that a person of the opposite sex would have been similarly treated : see Morrison J in British Telecommunications PLc v Williams [1997] IRLR 668.

17. In agreement with Ward LJ in Smith v Gardner Merchant Ltd [1998] IRLR 510, I respectfully think that some of these observations go too far. They cannot be reconciled with the language or the scheme of the statute. The fact that the harassment is gender-specific in form cannot be regarded as of itself establishing conclusively that the reason for the harassment is gender-based : ‘on the ground of sex’. It will certainly point in that direction. The gender-specific form of the harassment will be evidence, whose weight will depend on the circumstances, that the reason for the harassment was the sex of the victim. In some circumstances the inference may readily be drawn that the reason for the harassment was gender-based. A male employee who subjects a female colleague to persistent unwelcomed sexual overtures may readily be inferred to be doing so on the grounds of her sex.”

19. The EAT in Loosley went onto state:-

“(33) Those passages in Lord Nichols’ speech emphasise how important it is for the fact-finding tribunal in a case involving allegations of sexual harassment said to amount to unlawful sex discrimination to identify the reason for the harassment. It will only be if that reason is the victim’s sex that it will amount to relevant unfavourable treatment. If the harassment is of a gender-specific nature, that may invite the inference that the victim’s sex is the reason for it; and Lord Nicholls provides an example of the type of case in which that inference will readily be drawn. In less obvious cases, the fact that the harassment is of a gender-specific nature will at least provide evidence that the reason for it is the victim’s sex, but the task of the fact-finding tribunal will remain one of weighing all the evidence and then asking itself what was the reason for the treatment of which complaint is made. It does not inevitably follow that because of the treatment is of a gender-specific nature, the reason for it was the victim’s sex. The decision in Pearce v Governing Body of Mayfield Secondary School [2003] UKHL 34 heard and decided together with MacDonald, provides a good example of a case in which the gender-specific harassment of a woman did not amount of less favourable treatment on the ground of her sex, but rather than on the ground of her sexual orientation.

(34) The tribunal in the present case had MacDonald cited to them and their observations in Paragraph 47 reflect that they had asked themselves the right question, namely why was Mrs Loosely treated by Mr Moulton in the way she was. The answer to that question is that her treatment was simply a product of the banter and sexual innuendo which they found to be the common currency of office life within the Board at Kings Lynn. They in terms found it was not treatment visited on Mrs Loosely on the ground of her sex. We interpret the finding to be to the effect that the banter and innuendo were freely exchanged between all members of the office, men and women alike, that that Mrs Loosely became the victim of Mr Moulton’s banter and innuendo not because she was a woman but because she was a member of the office group which participated in that banter.”

The EAT did not find that this conclusion was perverse or wrong in law. It is important to remember that Loosely and Nazir referred to cases in which the alleged harassment took place where there was a difference in status; either race or gender, and not as in the present case where there was a single gender environment. The context is therefore is perhaps even more relevant to determine the purpose of the acts complained of by the claimant.

20. There is no legal prohibition against harassment on the grounds of pregnancy. It is not listed in Article 6A of the Sex Discrimination (Northern Ireland) Order 1976 as one of the protected characteristics in respect of harassment.

Sex discrimination

21. Article 3 of the Sex Discrimination (Northern Ireland) Order 1976 provides:-

“3-(1) In any circumstances relevant for the purposes of any provision of this Order, other than a 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.”

Article 5A of the 1976 Order provides that discrimination on the ground of pregnancy is:-

“5A-(1) In any circumstances relevant for the purposes of the 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.”

Burden of proof

22. The proper approach for a tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof in relation to discrimination has been discussed several times in case law. The Court of Appeal re-visited the issue in the case of Nelson v Newry & Mourne District Council [2009] NICA -3 April 2009. The court held:-

“22 This provision and its English analogue have been considered in a number of authorities. The difficulties which tribunals appear to continue to have with applying the provision in individual cases indicates that the guidance provided by the authorities is not as clear as it might have been. The Court of Appeal in Igen v Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a tribunal to go through a two-stage decision-making process. The first stage requires the complainant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination. Once the tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination. In an annex to its judgment, the Court of Appeal modified the guidance in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333. It stated that in considering what inferences and conclusions can be drawn from the primary facts the tribunal must assume that there is no adequate explanation for those facts. Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent. To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex. Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof. In McDonagh v Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.

23 In the post-Igen decision in Madarassy v Nomura International PLC [2007] IRLR 247 the Court of Appeal provided further clarification of the Tribunal’s task in deciding whether the tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination. While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen. The court stated:-

‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient matter from which a tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; ‘could conclude’ in Section 63A(2) must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent in contesting the complaint. Subject only to the statutory ‘absence of an adequate explanation’ at this stage, the tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.’

That decision makes clear that the words ‘could conclude’ is not be read as equivalent to ‘might possibly conclude’. The facts must lead to an inference of discrimination. This approach bears out the wording of the Directive which refers to facts from which discrimination can be ‘presumed’.

24 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 an adequate explanation, that the respondent has committed an act of discrimination. In Curley v Chief Constable of the Police Service of Northern Ireland [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.”

23. In S Deman v Commission for Equality and Human Rights & Others [2010] EWCA Civ 1279, the Court of Appeal considered the shifting burden of proof in a discrimination case. It referred to Madarassy and the statement in that decision that a difference in status and a difference in treatment ‘without more’ was not sufficient to shift the burden of proof. At Paragraph 19, Lord Justice Sedley stated:-

“We agree with both counsel that the ‘more’ which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be forwarded by a non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred.”

24. In Laing v Manchester City Council [2006] IRLR 748, the EAT stated at Paragraphs 71 - 76:-

“(71) There still seems to be much confusion created by the decision in Igen v Wong. What must be borne in mind by a tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination. The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the tribunal on the balance of probabilities that certain treatment had been by reason of race.

...

(73) No doubt in most cases it would be sensible for a tribunal to formally analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case. As I said in Network Road Infrastructure v Griffiths-Henry, it may be legitimate to infer he may have been discriminated against on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected. But at what stage does the inference of possible discrimination become justifiable? There is no single answer and tribunals can waste much time and become embroiled in highly artificial distinctions if they always feel obliged to go through these two stages.

...

(75) The focus of the tribunal’s analysis must at all times be the question whether they can properly and fairly infer race discrimination. If they are satisfied that the reason given by an employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is an end of the matter. It is not improper for a tribunal to say, in effect, ‘there is a real question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he believed or he did and it has nothing to do with race’.

(76) Whilst, as we have emphasised, it will usually be desirable for a tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so. There is no purpose in compelling tribunals in every case to go through each stage.”

25. In Veolia Environmental Services UK v Gumbs [2014] Eq LR 365, the EAT reviewed the authorities on the burden of proof including Hewage v Grampian Health Board [2012] ICR 1054, where the Supreme Court had stated:-

“So the prima facie case must be proved, and it is for the claimant to discharge that burden.”

26. In the Veolia case, the EAT was considering, not a remark made or actions taken in an all female environment, but a case of a black employee and a white manager. In that clearer situation the ET had concluded on the evidence that the burden of proof had shifted to the employer. That was upheld by the EAT. The head note stated:-

“Not very much may need to be added to a difference in status and a difference in treatment in order to shift the burden of proof. Employment Tribunals should be wary of treating the burden of proof provisions, and the judicial decisions explaining them, as such a rigid template that their forensic approach to evidence becomes different to that of other fact-finding first instance tribunals. In the present case, the tribunal did not merely conclude that a difference in the claimant’s status and the difference in treatment afforded to him was sufficient to shift the burden of proof.

In deciding that the burden had shifted to the respondent, the tribunal was entitled to take into account the fact that there had been differing and inconsistent explanation advanced by the respondent for the treatment complained of, and that the claimant had been demoted – for three days.”

27. Where the alleged treatment takes place in a single gender environment and in an environment where pregnancy is commonplace, it is likely to be more difficult for a claimant to establish a prima facie case of unlawful discrimination, including discrimination by way of harassment. Veolia, like most discrimination decisions, started with a clear difference in status.

28. In the case of Chief Constable of the Royal Ulster Constabulary v Sergeant A [2000] NICA 29, the Court of Appeal stated in relation to a FET case:-

“Where no apt comparison with the case under consideration is available it is wrong to equate treatment which the tribunal finds to be unsatisfactory or even harsh with unlawfully discriminating treatment in the absence of some evidence pointing towards the conclusion that a person of a different religion would have been treated differently.”

The Court went on to say:-

“It is a necessary part of the tribunal’s reasoning that ACC H, himself, a Catholic discriminated against the respondent because he is a Catholic.”

[Tribunal’s emphasis]

The tribunal saw fit to reject that denial and to accept that a senior officer of one faith was biased against a junior officer on the ground that he showed adherence to that faith. This is on its fact so extraordinary a proposition that one must look for some evidence to support it or some compelling reason why it might be accepted.”

Constructive unfair dismissal

29. In Western Excavating v Sharp Ltd [1978] IRLR 27 the Court defined the four key elements of a constructive unfair dismissal as:-

“(i) there must be a breach of contract by an employer;

(ii) the breach must be sufficiently serious to justify the employee resigning;

(iii) the claimant must leave in response to that breach and not for some other unconnected reason; and

(iv) the employee must not delay too long in terminating the contract in response to the employer’s breach.”

Statement of particulars of employment

30. Under Article 33(1) and 36(1) of the 1996 Order and under Article 27 and Schedule 4 of the Employment (Northern Ireland) Order 2003, the tribunal may award two to four weeks’ gross pay if certain specified particulars of employment have not been provided to an employee. However, this only applies if the tribunal has found in the claimant’s favour in certain claims, including unfair dismissal, sex discrimination and breach of contract.

Relevant findings of fact

Employment status of claimant before 20 September 2013

31. It does not appear to be in dispute that the claimant started to work in the hair salon owned by Ms Jones shortly after leaving school at the age of 16 in June 2010. It is also not in dispute that the claimant started a hairdressing course in the College in Rosemary Street in or around September 2010 and that she followed that course until September 2013.

32. The parties also accept that the claimant received £20.00 or £25.00 per week from Ms Jones during the period before September 2013 and the parties also accept that this payment had been entirely voluntary. The claimant had no contractual or other entitlement to be paid anything by Ms Jones during this period. The claimant also received a weekly payment of £40.00 by cheque during this period. She stated that this was ‘from the College’. It was not paid by or on behalf of Ms Jones.

Neither party could point to any clear documentary or other evidence setting out the basis for any such payment.

33. There is a dearth of contemporaneous documentation relating to either this payment or to the claimant’s employment status during this period. The claimant simply asserted that she had been an employee throughout this period but could not assist the tribunal further in identifying the precise nature of the £40.00 weekly payment.

34. The tribunal is not particularly assisted by the production of two DELNI forms which were each entitled ‘Delivery Agreement’. The first such form was dated 12 August 2011 and relates to a ‘placement’ for 104 weeks. There may be possibly have been an earlier Delivery Agreement covering the period from September 2010 up to August 2011. If there was such an agreement neither party has been able to locate a copy. In any event, the Delivery Agreement dated 12 August 2011 describes Ms Jones as the ‘employer’, the claimant as a ‘participant’ (not an employee) and the College as the ‘supplier’. Its contents suggests that the claimant was in the hair salon for two days per week and in the College for three days per week. The document concluded with:-

“We undersigned read the Agreement and accept the terms contained within it. It is understood that the Agreement does not constitute a basis of a contract of employment between any of the participating persons or organisations.”

The fact that this document referred to the claimant as a ‘participant’ appears to the tribunal to be significant. It seems consistent with the placement of a student with an employer (not her employer).

35. The second such Delivery Agreement was dated 2 September 2013. It referred to a 130 week placement. The placement had therefore extended by 26 weeks or six months. Unlike the earlier Agreement, it indicated that the minimum wage for apprentices was paid from 2 September 2013, and not from 20 September 2013 which would be consistent with the respondents’ evidence. A health & safety document attached to the Delivery Agreement referred to Ms Jones as a ‘placement provider’ and not as the employer.

36. In short, the first Delivery Agreement, which appears to be a form prepared by somebody in the Civil Service, described Ms Jones as an employer, and the claimant as a participant, but immediately stated that the document cannot be the basis of a contract of employment. There is no provision in the earlier Delivery Agreement for any wage to be paid to the claimant by Ms Jones. That differs significantly for the second agreement.

37. The second Delivery Agreement, while apparently on the same form, differs from the first in that significant respect. It required the specific payment of a wage, the minimum wage appropriate for an apprentice, by Ms Jones to the claimant. The separate document entitled ‘Apprenticeship NI Employer Agreement and Information Pack’ attached to the witness statement of Ms Jones provided for ‘employer responsibilities’. It required Ms Jones to employ the claimant according to ‘a separate contract of employment’ and to pay the minimum wage for apprentices from 2 September 2013 to 2 September 2014 and, after that, to pay the National Minimum Wage. That document differed again from the first document, in that it was signed by the claimant as an ‘apprentice’ and not as a ‘participant’.

38. The tribunal accepts the evidence of Ms Jones that a separate contract of employment was formulated in September 2013 but was not signed by either party. It seems, on the balance of probabilities, likely that this evidence is correct. If Ms Jones wanted to mislead the tribunal in this respect it would have been relatively easy to say that the document had simply been accepted but not signed by the claimant.

39. The EMA scheme still applies in Northern Ireland. It was abolished in England. The scheme seems to provide for different allowances. One allowance is at £30.00 per week and a different allowance is at £40.00 per week. In the present case the money paid to the claimant from September 2011 up to 2013 appears to have been a weekly allowance of £40.00 per week over a period of 104 weeks. The only feasible explanation is that this weekly payment was one type of EMA which was payable for that period to young persons aged 16 to 17 under the ‘Training for Success Programme’. It would therefore have ended on 11 September 2014, the claimant’s 18^th birthday. The purpose of the scheme was ‘about giving you the tools and the confidence to find work’. It related to people who ‘have not yet secured paid employment and who still possess training entitlement’. It therefore does not appear to be consistent with an employment relationship and is simply a payment in respect of further education.

40. The position in the present case appears to be that from September 2011 (not necessarily September 2010) to some date in September 2013, the claimant was receiving EMA. She was placed by the College during that period with Ms Jones for work experience as part of her training course.

41. The dates do not seem to match up exactly. The claimant appears to have been engaged in some form of training for a period of three years, ie from September 2010 until September 2013. The placement with the College is variously described in DEL documents as 104 weeks and 130 weeks but not 156 weeks. However it seems clear from the evidence that the payment of £40.00 per week could only have been an EMA under the ‘Training for Success Programme’. If it had been another type of EMA it would have been £30.00 per week. There is no suggestion that anyone else would have paid the claimant £40.00 per week as an exercise in philanthropy or otherwise. That leaves the question as to what the claimant’s status had been from June 2010 when she left school until September 2011 when it would appear that an EMA started. It is a pity that neither the claimant nor Ms Jones could assist the tribunal further in this regard. However, the period from September 2011 to September 2013 constituted a break in any period of service that might have existed beforehand and which certainly existed after September 2013.

42. The tribunal therefore concludes that after her training placement, the claimant was employed by the first-named respondent from either 2 September 2013 (the date the Delivery Agreement stated that she was to be entitled to the appropriate minimum wage for apprentices), 11 September 2013 (the claimant’s 18^th birthday) or 20 September 2013 (the date suggested by Ms Jones in her evidence and in the unsigned contract of employment). Again there is a lack of contemporaneous documentation and a lack of clarity.

43. In any event, whichever date in September 2013 is correct and if the claim is to be regarded as a claim of simple constructive unfair dismissal, the claimant did not have the necessary 52 weeks of continuous service to ground such a claim and any such claim would be outside the tribunal’s jurisdiction.

Alleged incidents of sexual harassment and/or sex discrimination

44. The claimant suffered two miscarriages during the period when she was working in the hair salon owned by Ms Jones. The first occurred in 2012. She did not attend her placement in the hair salon for a period of one week after that miscarriage.

45. On 6 November 2013, the claimant advised Ms Jones that she was pregnant again. Her evidence was that she told Ms Jones to keep this information private. That is denied by Ms Jones. In any event, Ms Jones told Ms Graham that the claimant was pregnant. It is clear that Ms Graham was the claimant’s line manager during this period. Ms Jones told nobody else.

The tribunal concludes that the claimant did not tell Ms Jones to keep the information private. It would not have made any sense for her to have done so. Given the history of a previous miscarriage, the claimant’s line manager would have had to know of her second pregnancy. It also does not fit easily with her willingness to tell all staff on the next working day. The tribunal also accepts the clear evidence of Ms McFerran who stated that she had first been told of the pregnancy even earlier by the claimant on 30 October 2013.

46. The next point of complaint raised by the claimant was that when she went to the tell Ms Graham that she was pregnant, Ms Graham already knew of her pregnancy because she had been informed of this fact by Ms Jones. It is clear that Ms Graham had been told by Ms Jones but, as stated above, this seems to the tribunal to have been an obvious and necessary step for Ms Jones to have taken. As the claimant’s line manager, she needed to know the claimant was pregnant.

47. On 11 November 2013 the claimant was advised by the Ulster Hospital that she had suffered a second miscarriage. She attended class at the College on the next day.

48. There was an exchange of text messages between the claimant and Ms Jones on 11 November 2013. The claimant stated in her evidence that she did not regard this as material to this case and went on to deny that the attitude shown by Ms Jones towards her, on her return to work, was ‘extremely sympathetic’.

In that exchange of text messages, the claimant, first of all, wrote to Ms Jones:-

“Hi Lyns, just to let you no was at the hosp the morning and all tests came back negative so unfortunately another miscarriage xx.”

Ms Jones wrote back almost immediately:-

“Auk Brooke, I’m so sorry u ok? xx.”

The claimant replied:-

“Auk yeah I’m fine, just hard to get my head around xx.”

Ms Jones replied:-

“I’m sure u take it easy xo.”

The tribunal concludes that those text messages from Ms Jones were sympathetic and entirely in order.

49. The claimant referred to her return to the hair salon on Wednesday 13 November 2013, after the intervening day in College. She again denied that Ms Jones’ attitude towards her on that day was ‘extremely sympathetic’. Her evidence was that:-

“Rather, she wanted to know exactly what had happened at the hospital and advised me that I ‘was only 20 and should go on the pill and for my partner to wrap it up’. I was shocked and found this very hurtful and offensive.”

50. This was a conversation which took place between the claimant and Ms Jones in the hair salon and no one else was present. The claimant, in her cross-examination at the tribunal, accepted that this had been a 15 minutes ‘sympathetic’ conversation between the claimant and Ms Jones. The claimant confirmed that she objected only to this one sentence which she alleged had been said by Ms Jones. Ms Jones’ evidence was that she had been exercising almost a motherly role and had been speaking to a 20 year old who had had two miscarriages and whose career was at risk. Ms Jones stated that she had advised that the claimant should consider going on the pill but she denied saying that she had told her that her partner ‘should wrap it up’. This was alleged to be a reference to the advisability of her partner wearing a condom.

There is an obvious and stark difference between the witness statement, ie the evidence-in-chief of the claimant, and her evidence given under cross-examination. Her witness statement painted the picture of Ms Jones wanting to know exactly what had happened at the hospital, of her not being sympathetic and of her being hurtful and offensive. The tribunal concludes that the claimant’s witness statement deliberately misstated the position. The conversation was clearly quite lengthy and conducted in private. While it may well have been inadvisable for Ms Jones to give birth control advice to a 20 year old, the tribunal is satisfied that the advice given by Ms Jones was well meant and that it had referred simply to the advisability of going on the pill. The tribunal is satisfied that, on the balance of probabilities, Ms Jones did not tell the claimant that her partner should ‘wrap it up’. It is highly unlikely that Ms Jones in these circumstances and in the context of a sympathetic conversation would have uttered such a crude remark. Again the tribunal concludes that the claimant’s witness statement deliberately misstated the position.

51. The claimant in her witness statement sought to state that she had never felt like that since she had been bullied at her first High School in Dundonald. She stated that she went home that evening she was in flood of tears and that she did not want to trouble her parents or have her siblings see her in that state.

That conflicts again with her evidence in cross-examination to the effect that she had told her mother of the incident on that night. It is, in any event, a gross exaggeration. She had not been bullied by Ms Jones.

52. The next incident that the claimant raised was one which occurred on 14 November 2013. Ms Graham, her line manager, who had been on holiday the previous day had asked her how everything had gone and whether she had got the scan. The claimant accepted in evidence that Ms Graham clearly did not know at that stage that she had had a miscarriage. Despite raising this as a matter in her claim form she accepted in her evidence-in-chief that the comments were ‘probably made innocently if a little intrusively’. Again the tribunal finds it difficult to understand how such an innocent enquiry after the claimant’s own health and after the progress of what was believed at that stage to be still her pregnancy could have been described in any pejorative terms. It seems to the tribunal to have been an entirely sympathetic and proper enquiry. It is concerning that the claimant has sought to argue, while begrudgingly accepting that the comment ‘probably’ had been made innocently, that it was in some way ‘intrusive’. It seems again to be an attempt to misstate the position and to enhance her claim.

53. The claimant alleges that three comments were made by Ms Graham against her in the course of a discussion on 14 November 2013 in relation to a Secret Santa competition where members of the staff were selected by lot to buy presents for each other. The first alleged remark was that the claimant had indicated ‘I don’t know what you would get for me’ and that Ms Graham stated ‘a pregnancy test’. The second remark alleged by the claimant and accepted by the respondents was that in the course of the conversation in relation to the Secret Santa competition, Ms Boyd had asked what to get the claimant and Ms Graham had replied ‘packet of condoms and a pregnancy test’. The third allegation was that, again in the course of this conversation, Ms Graham said, again to Ms Boyd, ‘get Brooke some condoms and a pregnancy test’.

54. The claimant mentioned only the second alleged remark in the grievance compiled on her instructions and sent by her solicitor to the respondents on 23 January 2014. This was a detailed grievance setting out several complaints. It therefore seems odd that, if the first and third alleged remarks had also been made and had caused the distress alleged by the claimant, that no mention was made of them in the grievance compiled on the claimant’s instructions.

55. Similarly, the claimant only mentioned the first and second alleged remarks in the claim form signed by her on 28 November 2013 and lodged in the Office of the Tribunals on 12 February 2014. This claim form contained four handwritten pages setting out the claimant’s various allegations in some detail. The claimant has produced no satisfactory explanation for her failure to mention the third alleged remark in that claim form which had been lodged after she had engaged solicitors.

56. The other witnesses who gave evidence to this tribunal, ie Ms Jones, Ms Graham, Ms Boyd and Ms McFerran, did not hear either the first or third alleged remarks. It seems improbable in any event that Ms Graham would have made a similar remark three times in the course of one conversation in relatively quick succession. It also seems improbable, if such a similar remark had been made three times by Ms Graham, that the first and third occasions had not been raised by the claimant in her grievance and equally improbable that the alleged third remark had been omitted for some reason from the claim form.

The tribunal therefore concludes that only the second remark was made as accepted by the respondents. It seems unlikely that all the witnesses, other than the claimant, would have lied in relation to this crucial point on oath. If the respondents had actively set out to lie in conjunction with each other and with Ms McFerran, they could have denied from the start that the second remark had been made. They did not do so.

57. The claimant alleges that she did not join in the laughter after the second alleged remark. It is unlikely that Ms Graham, Ms Boyd and Ms McFerran were deliberately lying in concert when they stated in evidence that the claimant had joined in the laughter following this remark. They did not seek to deny that the second remark had been made. It also seems clear that the claimant did not immediately object to the remark which was apparently made in the course of a jocular exchange about the Secret Santa competition. It therefore seems more likely than not that the claimant did actually laugh initially at the remark made by Ms Graham (but became upset later).

58. There was a further conflict in evidence between the claimant and the various respondents’ witnesses. The claimant says that she was not part of the group at reception that was discussing the Secret Santa competition. The respondents’ witnesses indicated that she was part of that group. In any event, this does not seem to be a crucial issue. It is clear that at some point the claimant had moved from the reception area to the sinks at the far end of the hair salon. She alleged in evidence that she had shouted up the salon ‘that’s not funny’, apparently in relation to the second alleged remark. No other witness heard this and it seems unlikely that the claimant, while working with a customer at the far end of the salon was able to overhear parts of the conversation at the reception area and equally unlikely that she then shouted up the salon in front of a customer and in front of the other members of staff without any witness being produced on her behalf, and without any witness agreeing this had ever occurred.

The tribunal therefore concludes that the claimant did not shout, as she alleged, ‘that’s not funny’.

59. The claimant alleges that on the night of 14 November 2013 she had been ‘suicidal’ and that her parents had been extremely concerned about her. The claimant said in cross-examination that her parents had advised her to speak to Ms Jones but she said she was ‘not that kind of person’. She accepted that on 14 November 2013 she neither went to her GP immediately or sought any other medical attention immediately and that she did not speak to Ms Jones. The tribunal is concerned that if the matter were so serious, as the claimant now alleges, and that the claimant had been ‘suicidal’, there appears to have been no attempt to seek urgent assistance from either the Out of Hours Doctor, the A&E Department of her local hospital, the Samaritans, or from any other source. The claimant instead saw her General Practitioner. The claimant was not seen by her GP until 22 November 2013, over one week later. The GP did not record that she was ‘suicidal’. The GP recorded that she was upset. The GP also recorded:-

“Says had fleeting thoughts of self harm yesterday okay today.”

The tribunal accepts that the claimant had had a difficult time with two miscarriages. However, the claimant appears to be somewhat over-stating her level of mental distress by describing herself as being ‘suicidal’ after the events on 14 November 2013. If that had been the case there would have been a clearer reference to that in the GP's records and, apart from the reference to ‘fleeting thoughts of self harm’ apparently referring to 21 November 2013, there is no such reference.

60. The GP's report dated 24 June 2014, which was not agreed, stated that the claimant had been understandably distraught on 22 November 2013 and that ‘the miscarriage had caused her great distress’. The report went onto say that she had been upset about other issues. It stated:-

“She told me that she had returned to work and that people were making fun of her and laughing as regards her pregnancy and miscarriage. She was very upset in the surgery. She described she had fleeting thoughts of self harm the day previous. She was not actively suicidal, nor had she thoughts of ‘life not worth living’.”

61. Again there is no statement that the claimant had been suicidal. The claimant appears to have overstated her mental condition in this respect. Furthermore, the GP reported her as having told him that other members of staff were making fun of her and laughing as regards her pregnancy and miscarriage. It was made plain by counsel for the claimant that there was no allegation that any member had mocked or ridiculed the claimant because of her miscarriage. Indeed it would have been difficult to credit any such allegation. It would take someone without any human feelings at all to mock someone because of a miscarriage. Yet that was the allegation she had apparently made to her GP.

The claimant was next due in work on Saturday 16 November 2013 and apparently attended. That in itself does not appear consistent with someone being ‘suicidal’.

Again the tribunal is concerned that the claimant appears to overstate her complaints and to misrepresent the factual position.

62. The claimant further alleges that on 20 November 2013 Ms Jones mentioned the Secret Santa incident and proceeded to laugh and say it was a joke. The claimant alleges that Ms McFerran was present and had heard this. Ms McFerran confirms that she was present in the hair salon on that day but she does not recall hearing any such conversation between the claimant and Ms Jones. Ms Jones stated that on that day the claimant had come over to her and had told her that she had not found it funny that Ms Boyd was apparently going to get her a pregnancy test and condoms for the Secret Santa. Ms Jones stated that this was the first time that she had heard about this and stated that it had clearly been insensitive given that the claimant had had a miscarriage a few days before. Ms Jones stated she told the claimant not to worry about it and that she would speak to Ms Boyd. When speaking to Ms Boyd, she confirmed that it had been Ms Graham who had made the comment. When Ms Jones spoke to Ms Graham about the remark, Ms Graham told her that it had been meant as a joke but she had felt really bad afterwards.

It seems more likely than not that the account given by Ms Jones is correct. It seems unlikely that the claimant would not have raised this issue if she had felt annoyed to some extent about the remark that had been made by Ms Graham. The actions which Ms Jones took appear to be consistent with her evidence to the tribunal.

The tribunal therefore concludes that the claimant’s evidence in this regard is inaccurate and that it is again an attempt to enhance her claim.

63. The claimant complained about an e-mail response from Ms Boyd. This was an e-mail on 22 November 2013 from Ms Boyd to the claimant which appears to the tribunal to be in entirely sympathetic terms. Ms Boyd clarified that Ms Jones had spoken to her on the previous day and that Ms Jones had said that the claimant had complained about Ms Boyd getting a pregnancy test for the Secret Santa. Ms Boyd pointed out that it was not her that had made the remark but Ms Graham.

It is difficult to see what the complaint is that the claimant wishes to make against Ms Boyd. At its height, it appears to be and allegation that Ms Boyd joined in general laughter in relation to the second alleged remark. However, the tribunal has already found that the first and third remarks were never made and that the claimant had joined in herself into the general laughter following the second remark.

64. The claimant stated in evidence that 21 November 2013 had been her ‘lowest point’. She stated that she had been feeling upset and ‘suicidal’ and that she went to see her GP urgently on the next day, 22 November 2013. That evidence does not reconcile easily with the GP records which record for that day, ie 22 November 2013, only ‘fleeting thoughts of self harm yesterday’, ie on 21 November 2013. Those records record the claimant as being ‘upset’ but ‘OK today’ with no thoughts of ‘life not worth living’. The notes state ‘patient reviewed’ when recording the 22 November 2013. The GP report prepared for this tribunal stated that at this point she had not been ‘actively suicidal’. The report also suggested that the GP saw her on 22 November 2013 on review. It stated ‘when I saw her at the GP surgery for review’. That suggests that that had been a pre-arranged appointment following her miscarriage. There is no suggestion in the records that this had been an urgent appointment sought by the claimant following her difficulties at work. The claimant’s evidence in cross-examination was that she had sought an urgent medical appointment after 16 November 2013 but had not got one until 22 November 2013. It seems unlikely that someone who had recently had a miscarriage and who was ‘suicidal’ would have had to wait for six days to see a doctor and then only as a review.

The tribunal’s conclusion is that while the claimant had obviously been seriously distressed by her second miscarriage, her evidence before this tribunal that she had been ‘suicidal’ and at ‘her lowest point’ on 21 November 2013 was overstated and exaggerated. It was not supported by the medical evidence brought by the claimant.

65. It is also clear that the claimant, at this point in time, had decided not to return to work. Despite that clear decision which she confirmed in her witness statement and in her cross-examination, the claimant continued to claim statutory sick pay and did not resign from her post for almost three months.

66. The claimant visited her solicitor on the first occasion on or about 28 November 2013 which was the day she completed and signed her first claim form. That was the claim form which mentioned only the first and second alleged statements made by Ms Graham. The grievance letter was also completed by her solicitors at a later stage (23 January 2014) and sent by her solicitor to Ms Jones. This grievance letter, in relation to the Secret Santa incident, referred only to the second alleged remark.

Ms Jones replied to the grievance letter promptly on 28 January 2014 and stated that the matter had been referred to Mr Moore LLB for investigation. Crucially, the letter contained a final paragraph:-

“Mr Moore has also asked if your client is willing to be interviewed by him as part of the grievance procedure.”

67. The claimant’s solicitor and indeed the claimant, did not reply to this letter and did not respond at all to the clear invitation for the claimant to be interviewed and to take part in the grievance procedure. At this point the claimant had been absent from work since mid-November 2013. She appears to have failed to contact the respondents thereafter and any intermittent contact appears to have been through her mother. She had failed to respond to an invitation by text message from Ms Jones to take part in a Christmas party. That invitation appears to have been in open and friendly terms:-

“Hi, hows things? Doing a head count for Saturday night, hope you can still make it?” (11^th December 2013)

The claimant had then chosen to lodge a grievance through her solicitors rather than lodging her grievance herself.

In those circumstances the tribunal considers that it was entirely understandable that an invitation to be interviewed was communicated by Ms Jones to the claimant’s own solicitors. It was after all the claimant’s decision to involve her solicitors in this internal grievance procedure. That clear invitation did not receive any response. The claimant now alleges that the respondents had failed to invite her to interviews, in that Mr Moore had not written to her directly. The tribunal concludes that that is an unrealistic and misconceived argument. The tribunal is satisfied that the claimant had decided not to take part in the grievance procedure despite a clear and open invitation communicated properly to her own solicitors.

68. The claimant, complained, in particular, in her witness statement that the lack of contact in relation to her grievance and the lack of contact that her employers had with her while off on sick leave left her with no choice but to resign from her employment. The tribunal notes in that respect that the claimant had obviously failed to respond to an invitation to be involved in the grievance procedure. It also notes in that respect that the claimant had failed to respond to the invitation to be involved in a Christmas party. The claimant also does not mention that there had been intermittent contact which she had chosen to make through her mother in relation to statutory sick pay. The claimant again appears to be somewhat misstating and exaggerating the position.

69. The claimant also complained that she had been told that Ms Jones had told another client of the hairdressing business, ie Ms Una Murdoch, of her second miscarriage. The tribunal prefers the clear evidence of Ms Jones that this was a particular client with whom the claimant had been friendly, and with whom she had discussed her earlier miscarriage. This seems to have been a perfectly ordinary conversation.

70. The continuing evidence of the claimant again appears to have been overstated or exaggerated. For example, she alleged that she had not been asked at any stage during her sick leave ‘how I was’. She accepts she received a text from Ms Jones about a Christmas party to which she did not reply. It is absolutely clear from the content of that text that she had been asked how she was. The text began:-

“Hi, hows things?”

71. The claimant alleged that she was suicidal and incapable of work during the period from November 2013 to February 2014 as a result of how she had been treated in the respondents’ employ. The suggestion, that she had been suicidal throughout this period, is difficult to reconcile with the medical evidence that she has herself produced. That refers only to ‘fleeting thoughts of self harm’ on 21 November 2013. On later dates, there is no reference to actual ‘harmful ideation’. Furthermore, although she stated in sworn evidence that she had been totally incapable of work during this period she accepted in cross-examination that she had applied for other jobs during this period and indeed had been offered another job which she had turned down because of personal choice and not because she had been ‘totally incapable’ of performing the job.

72. In her second claim form, which she claimed constructive unfair dismissal, she stated:-

“I have found it untenable to return and therefore claim that I have been unfairly constructively dismissed so to this end I handed in my resignation after securing another job out of the hairdressing industry altogether.”

This was a job which she started on 17 February 2014 at a significantly higher salary and some three months after her last day of work with Ms Jones. During that period the claimant had continued to claim statutory sick pay and intermittently to apply for other jobs. There is no medical evidence that she had been in any way incapable of resigning promptly from her job with Ms Jones.

73. On 31 January 2014, Mr Moore interviewed, in succession, Ms Jones, Ms Graham, Ms Boyd and Ms McFerran. He noted that the claimant had been invited to contact him to arrange a meeting to attend but neither she nor her solicitor had responded as yet. Ms Jones stated that there had been ‘good natured banter’ in relation to the Secret Santa incident and that Ms Graham had made a joke that Ms Boyd should buy the claimant a pregnancy test and a packet of condoms. She stated that Ms Graham had thought that she was only having a laugh but in hindsight she was sorry if she had caused any offence.

Ms Graham stated that she admitted that she had made the second alleged remark but that it had been meant as friendly banter. She stated that she did not understand why the claimant was pursuing this matter but felt that someone was egging her on. She stated that she was happy to meet the claimant and apologise to her if that is what she wanted. Ms Graham, according to the notes, broke down at this point and had to have time to control herself. Ms Graham then stated that she had felt that there had been no harm done and that everyone had been having a laugh, that she could not understand how the claimant took offence at the comment when she had not been offended when she asked Ms Graham to buy a pregnancy test on her behalf in the chemist because she had not wanted the individual serving in the chemist to know she was looking for a pregnancy test.

Ms Boyd stated that the claimant could be childish and moody at times. She stated that everyone had been having a laugh at the time of the second alleged comment and that it was only afterwards that the claimant’s attitude had changed.

Ms McFerran stated that the claimant had talked with her a lot and had often discussed her private sex life. She stated that the claimant could be childish and moody and that the comment made by Ms Graham was made in fun and that the claimant had laughed along with everyone else. It was only afterwards that she objected. She stated that she could not see how the claimant could be offended by the comment and that the claimant had openly discussed with her not using the pill and not using contraception.

74. Mr Moore recommended that Ms Graham should be subject to a disciplinary procedure although he would recommend a penalty of the very lowest level given the circumstances and given the fact that the remark had originally been intended to be light-hearted fun.

75. No disciplinary procedure had been in fact been instituted against Ms Graham. Ms Jones stated that she wanted to hear the claimant’s side before taking the matter any further. Since this recommendation was made on 28 January 2014 and the invitation to the claimant’s solicitors to take part in the grievance process had only recently issued, it is understandable that Ms Jones should have waited at least for some time to see whether the claimant was going to take up her opportunity to put her side of the story. It would have been wrong to move immediately at that point to disciplinary action. However the tribunal concludes that at some point thereafter Ms Jones could and should have moved to disciplinary action. It is also notable that Ms Graham has failed to apologise to the claimant for the second alleged comment. That is something which she could and should have done at the earliest opportunity.

76. Clearly, the tribunal has to consider the context in which the alleged gender harassment and the alleged gender and pregnancy took place. This was an entirely female environment; both staff and customers. The claimant, in a curiously worded part of her witness statement stated:-

“I am a stranger to the work atmosphere described in Paragraph 50 of the response [that paragraph referred to the culture of sexual banter].”

The claimant described herself as ‘quite quiet’ and someone who would not be comfortable with talk of sex and racy comments particularly in the workplace.

77. Ms Graham, Ms McFerran and Ms Jones all gave evidence that the claimant had openly discussed sexual matters in the workplace. Ms Boyd was less specific but stated that the claimant ‘had a lot going on in her life and there was always some sort of drama in which she claimed to be the victim’. The tribunal prefers the evidence given on behalf of the respondents. It is highly unlikely that the respondents’ witnesses lied in concert as alleged by the claimant while at the same time giving clear evidence that was potentially to their detriment, eg that the second remark had been made, that the claimant became quiet later and that no contract had ever been agreed.

78. The tribunal concludes that the claimant had openly discussed sexual matters in the workplace and that the ‘second remark’ had taken place in that context.

79. The claimant accepts that the claimant had been understandably distressed by the two miscarriages she had suffered. However she alleged that she separately suffered distress and mental ill-health as a result of a range of employment-based incidents and that this constituted sexual harassment and/or sex discrimination. There is no medical evidence before the tribunal which can link any mental distress solely to the alleged incidents rather than to the two miscarriages or indeed to pre-existing mental health problems.

Decision

80. At its core, this is a tragic case where the claimant suffered two miscarriages while working at the hair salon owned by Ms Jones. The tribunal expressed its sympathy during the hearing and takes the opportunity to do so again. Clearly the miscarriages have been a very distressing experience for the claimant.

Nevertheless the complaints and allegations of constructive unfair dismissal, sex discrimination and sexual harassment now made by the claimant are in many respects overblown and unreasonable.

81. The tribunal first concludes that the claimant had not been an employee of Ms Jones in the period immediately before September 2013. It is clear that the claimant had been a student on placement from the College for at least the two years before that date. The claimant therefore has not established the necessary 52 weeks’ period of continuous service to ground a complaint of constructive unfair dismissal under the 1996 Order. The claimant would have been aware throughout that this was the position and that she had not been an employee of Ms Jones in the period immediately before September 2013. She would have known that she had been in receipt of EMA paid through the College and that Ms Jones had no part whatsoever in its payment. She also knew that the additional pocket money of £20.00 or £25.00 per week from Ms Jones had been an entirely voluntary payment. She knew that she had been a student of the College throughout the period immediately preceding September 2013. She knew therefore that she had been a student and not an employee. Yet she persisted in the argument that she had in fact been an employee throughout her entire engagement with the hair salon. That seems to the tribunal to be an entirely unreasonable position to have adopted and contrary to the evidence.

82. The claimant stated that she had developed panic attacks and depressive symptoms following an incident in which she saw an employee (or a fellow student) have a fit a work. The claimant was then also obviously distressed at suffering two miscarriages. Nevertheless, the claimant sought to lay the blame for any mental health difficulties that she might have had, solely at the door of the respondents. That again seems to the tribunal to be an unreasonable position to have adopted.

83. The claim of unlawful harassment on the grounds of gender relates, inter alia, to the one remark (‘the second remark’) made by Ms Graham on 14 March 2013. The claim has to be viewed in its context (see Nazir above). It is not the tribunal’s role to exceed its statutory jurisdiction and to act as a moral arbiter in relation to all workplace conduct. The remark made by Ms Graham was clearly tasteless and insensitive. Nevertheless the remark was delivered in a jocular exchange at which the claimant initially laughed. The claimant clearly became upset shortly afterwards. This sort of banter and the discussion of sexual matters was clearly commonplace in this all female workplace and all female environment. It is extremely regrettable that Ms Graham did not apologise for the remark. The remark itself, which referred to pregnancy, was gender specific; however that in itself is not enough for the tribunal to conclude that a prima facie case of gender harassment has been made out (see Loosely above). It was also part of a culture of commonplace sexual banter.

84. In this context, the tribunal is dealing with matters relating to gender equality in the workplace. It is not a court of etiquette adjudicating at large on the conduct of interpersonal relationships. Claims also have to be in some way grounded in reality. The remark of Ms Graham in the context in which it was uttered and in the context of an all female environment where sexual discussions were the norm, cannot be regarded in any way as unlawful harassment related to gender. It was appalling bad manners and insensitive; but nothing more.

85. The claimant also complains of other matters which are set out above. Again those matters were not gender related harassment. The enquiries by Ms Jones and Ms Graham in relation to the claimant’s health were normal and reasonable. The advice given by Ms Jones that the claimant should go on the pill was unwise but the tribunal concludes that it was well-meant and sympathetic. It also seems to the tribunal to have been the sort of comments that Ms Jones would have had with a 20 year old male employee whose partner had had a second miscarriage. Telling Ms Graham of the claimant’s pregnancy was entirely normal and reasonable. It was not contrary to any instruction from the claimant. Even if it had been, it could not have amounted to unlawful gender related harassment. It was not related to the claimant’s gender. It was a normal measure in the workplace where a potential health and safety risk emerged.

Telling a client with whom the claimant had been friendly of the reasons for the claimant’s then sick absence was again entirely normal and reasonable. It was not because of her gender. There is nothing in any of the claimant’s complaints which could have grounded a claim of unlawful gender related harassment. No prima facie case has been made out.

86. Turning to the claim of unlawful gender or pregnancy discrimination, the claimant has again failed to establish a prima facie case. The claimant was in an all female environment where pregnancy and maternity were commonplace. The unchallenged evidence of Ms Jones was that Ms Jones and a number of other employees were working mothers. Two employees were also on maternity leave and another employee had had a miscarriage. The discussion of sexual matters had also been commonplace and a matter in which the claimant participated.

Without going through each of the allegations again, there is nothing in any of this which could ground a claim of unlawful gender or pregnancy discrimination. With the exception of one remark (the second comment) the manner in which the claimant had been treated by Ms Jones and her colleagues was unobjectionable for the reasons set out above. It cannot be regarded as less favourable or detrimental treatment. The one remark made by Ms Graham was appalling and insensitive. It was regrettable that no apology was ever made. However to amount to unlawful discrimination it must have been on the ground of her gender. Leaving aside the question of the protected period, it must alternatively have been made on the ground of her pregnancy. There is no prima facie case that this was so. In a single gender environment where both sexual discussion and pregnancy were common place, it would require some particular evidence to point to such a conclusion. Relying on the Sergeant A case, that would be ‘so extraordinary a proposition that one must look for some evidence to support it or some compelling reason why it might be accepted’.

The second remark, while gender-specific, was just part of sexual banter in which the claimant had participated. In the circumstances, it was crass and insensitive. It was not on the ground of gender or pregnancy. The other matters were not detrimental or less favourable treatment and were not on the ground of gender or on the ground of pregnancy. To the extent that the matters alleged by the claimant occurred at all, they were normal exchanges.

87. Turing to the constructive unfair dismissal claim, the claimant does not have the necessary period of 52 weeks continuous service as an employee to ground any claim of constructive unfair dismissal.

Even if she had such service, she clearly delayed for some months before resigning and continued to claim SSP as an employee of Ms Jones before leaving for a better paid job. The link between her resignation and the obtaining of the new employment is made plain in the second claim form.

The constructive unfair dismissal is dismissed.

88. The claims in relation to a failure to provide statutory terms and conditions can only stand if one of the other claims is upheld.

89. All the claims are dismissed against all respondents.

Vice President:

Date and place of hearing: 19 – 21 August 2014, Belfast

Date decision recorded in register and issued to parties: