Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    582/13

 

 

 

CLAIMANT:                          Jacqueline Donnelly

 

RESPONDENT:                  Plumbing Trade Supplies Ltd t/a Spendlove C.Jebb

 

 

 

DECISION

 

The decision of the tribunal is that, in regard to the claimant’s respective claims of:-  (1) automatically unfair dismissal for a reason relating to maternity leave, contrary to Article 131 of the Employment Rights (Northern Ireland) Order 1996; (2) unfair dismissal contrary to Article 126 of the Employment Rights (Northern Ireland) Order 1996; and (3) direct pregnancy-related discrimination, the unanimous decision of the tribunal is that such claims are not made out and the respective claims are dismissed by the tribunal, without further order.

 

 

Constitution of Tribunal:

 

Chairman:                            Mr J V Leonard

 

Members:                             Mrs S Doran

                                                Mr I Rosbotham

 

 

Appearances:

 

Mr Mark McEvoy, Barrister-at-Law, instructed by the Equality Commission for Northern Ireland, appeared for the claimant.

 

Mr Robert Poole, of the respondent company, appeared for the respondent.

 

 

 

REASONS

 

THE CLAIMS, THE ISSUES AND THE SOURCES OF EVIDENCE

 

1.            By claim dated 20 March 2013 and received by the Office of Industrial Tribunals on that date, the claimant instituted claims of sex discrimination and unfair dismissal and provided particulars of these claims.  By response dated 22 April 2013 the respondent set forth grounds of resistance to the claims.  The matter was subject to case management in order to identify the issues which the tribunal hearing the matter would have to consider and also to deal with other case management issues and procedures.

 

2.            At a Case Management Discussion held on 11 June 2013, legal and the main factual issues were identified as follows:-  (1) Was the claimant unfairly selected for redundancy and so unfairly dismissed contrary to Article 126 and following of the Employment Rights (Northern Ireland) Order 1996?  (2) Was the procedure followed in compliance with the Statutory Disciplinary and Dismissal Procedures?  (3) If the procedure was procedurally fair, was it nevertheless substantively unfair?  (4) Was the claimant discriminated against on grounds of her pregnancy/maternity leave in being selected for redundancy?

 

3.            In the course of the hearing and in subsequent written submissions made on behalf of the claimant, it was clarified that the claimant's respective claims were threefold.  Firstly, the claimant claimed that she had been automatically unfairly dismissed for a reason relating to her maternity leave, contrary to Article 131 of the Employment Rights (Northern Ireland) Order 1996, this reason being asserted to be the principal reason for the decision to terminate the claimant's employment on grounds of redundancy.  Secondly, the claimant claimed that this decision was, consequently, informed by unlawful discrimination on the grounds that the claimant had exercised her right to maternity leave, contrary to Article 5A of the Sex Discrimination (Northern Ireland) Order 1976 (as amended).  Thirdly, and in the alternative, the claimant also claimed that her dismissal was unfair in the “ordinary” sense under Article 126 of the Employment Rights (Northern Ireland) Order 1996.  The claimant's case did not include any specific assertion, made subject to any submissions, that the procedure followed by the respondent was not in compliance with the Statutory Disciplinary and Dismissal Procedures.  Accordingly the tribunal was required to determine these specific claims in order to determine issues of liability in the matter in the light of the evidence adduced and the submissions made upon conclusion of the case and applying the relevant statutory provisions and legal principles such as were set forth in the authorities cited in argument and general principles of law applicable to the matter.

 

4.         The tribunal heard evidence from the claimant and from Jane Healy the respondent's Stock Controller, and on behalf of the respondent from George Hillock, former Branch Manager at the respondent's Belfast branch, Ryan Smith and Conor Barnes, both Showroom Sales Advisors, Eamonn McCarthy, the respondent's Area Sales Manager, Karl Hegney, current Branch Manager at the respondent's Belfast branch, Jim Watson, an employee of the respondent who held the job title of Showroom Sales Advisor, and Ken Kinkead, the respondent's Regional Director for Ireland.  Witnesses were subject to examination-in-chief and to cross-examination and the tribunal asked questions in clarification of the issues.  The tribunal also had before it an agreed bundle of documents running to some 243 pages, together with two bundles of legal authorities and two sets of written submissions from each side, these latter submissions consisting of some 46 pages in total.

 

 

THE TRIBUNAL’S FINDINGS OF FACT AND THE CONTENTIONS OF THE PARTIES

 

5.         In consequence of the oral and documentary evidence adduced, on the balance of probabilities the tribunal determined the following matters of fact pertinent to the issues of liability to be decided in the case.  For convenience, in a case such as this, the tribunal also includes in this part of the decision reference to some of the contentions advanced by the parties and the tribunal’s resolution of matters and determinations in regard thereto.

 

5.1      The respondent in this matter, Plumbing Trade Supplies Limited, trades in Northern Ireland as “Spendlove C. Jebb”.  At the material time, that is to say 2012 and 2013, the respondent operated from trading branches located in Enniskillen, Newry, Lisburn and also in Belfast.  The respondent is a wholly owned subsidiary and a part of the BSS Group Plc (further referred to in this decision as “BSS”).  The respondent, Plumbing Trade Supplies Limited, is further referred to as “PTS”.  The claimant commenced employment as a showroom sales advisor with PTS in the respondent’s Grosvenor Road, Belfast, premises on 23 July 2007.  By letter dated 27 July 2007 PTS confirmed the offer to the claimant of the post of employment as showroom sales advisor.  The terms of employment were confirmed in writing, these including job title, hours of work, sick pay arrangements, holidays, notice pay, pension arrangements, health and safety policies and procedures, data protection and other such matters.  The claimant confirmed her acceptance of these terms.

 

The BSS Redundancy Procedures and Procedural Guidelines

 

5.2      BSS had developed redundancy selection procedure guidelines, including a document entitled, “Guidance Notes for Managers – FOR INTERNAL USE ONLY” (referred to hereafter as “the BSS Managers’ Guidance”).  The BSS Managers’ Guidance in regard to group redundancies stated the following:-

 

                        “If a Group of Employees are potentially affected, (eg, a number of individuals with the same job title or doing the same role) it is normal practice for an announcement drafted by HR to be made regarding the potential redundancies and to ask affected employees to consider applying for voluntary redundancy by an agreed date.  If there are no volunteers (or the volunteers are not considered to be suitable due to skills and experience and potential to be redeployed within the business) then the procedure should be followed as per the stages below.  If this is the case, please also refer to the “Guidance Notes for Managers – Completion of Employee Assessment Forms” below.”

 

5.3         The BSS Managers’ Guidance made provision for a group consultation process (if there were no volunteers for redundancy).  This part of the process involved a number of stages: Stage 1 concerned the completion of employee assessment forms; Stage 2 related to consultation meetings to be held with the individual with the lowest scoring; Stage 3 concerned the group consultation process and the authorisation of score sheets; and, finally, Stage 4 involved the group consultation process, with confirmation of any redundancy, as applicable.

 

5.4         Examining these four stages as set out in the BSS Managers’ Guidance in a little more detail, firstly Stage 1 of the process provided for assessment forms to be issued (by the respondent's HR Department) to any managers of the affected employee groups in order that individual scores might be complied by the responsible managers.  It was specified that the assessment forms should be completed by a panel consisting of at least two managers and/or supervisors who possessed the best knowledge of the affected individuals.  The assessments were stated to be required to be complied by two assessors in order to ensure that the risk of personal bias was minimised.  Once the assessment form had been completed, the two assessors were required to discuss their respective assessments and to agree a final score for each area of the selection criteria and to mark this in the appropriate part (Section D) of the assessment form.  The HR Department was required to provide any requisite information, for example length of service, absence details and any disciplinary record information.  All completed employee assessment forms were thereafter to be transmitted to the HR Department and these would then be reviewed by that Department.  The stated purpose of that latter process was to ensure that selections had been objective and consistent.

 

5.5         Stage 2, as provided for by the process, comprised two separate steps.  The first step of the Stage 2 process involved a meeting being arranged with the individual(s) who had the lowest score(s).  At any consultation meeting the panel was required to inform the individual of their score and of the rationale for that and was required to give the affected individual a copy of their assessment form(s).  It was specified that the individual should be told that a final decision had not been made at this stage, but that they were “at risk” of redundancy.

 

5.6         The second step under Stage 2 provided for a meeting to be arranged with the individual(s) affected.  That second-step meeting was to be attended by the same panel members and by the affected individual, who would have the right to be accompanied.  The purpose of that second meeting was to allow the individual to respond to the assessment and to give any information that the person felt had not been taken into account.  It was provided that any changes in the scores were to be agreed at that point.  It was also specified that there were to be discussions regarding possible redeployment opportunities and representations might be made as to alternatives to compulsory redundancy.  Again, the individual was not to be told at either of these two Stage 2 meetings that he or she had been selected for redundancy, but rather that they remained “at risk” of redundancy.  The individual was to be told that any comments made would be considered fully (at the further stage) before any final decision was made.

 

5.7         Following the forgoing part of the process, Stage 3 then took place.  At Stage 3, all forms were to be reviewed by the line manager and by the HR function, wherever possible within one working day of the second consultation meeting (at Stage 2).  All comments made by individuals were to be taken into account and a final decision might then be made on the individual(s) potentially to be made redundant.

 

5.8         Stage 4 of the process then provided that any individual selected for redundancy would be issued with a notice of redundancy in writing or a meeting would be arranged to confirm the outcome.  There was specific guidance provided as to how this final meeting in Stage 4 of the process was to be conducted.

 

5.9         The BSS redundancy procedures provided for “EMPLOYEE ASSESSMENT FORM - Guidance Notes for Managers” (referred to as “the Managers’ Assessment Guidance”).  That latter provided guidance to managers concerning the conduct of the assessment process, including ensuring that the process was fair, consistent, objective and non-discriminatory.  The Managers’ Assessment Guidance specified that persons conducting the assessment had been selected to carry out assessments because they had a good knowledge of the individuals concerned and of the work which they performed.  They were required to be confident that they could respond to any challenge which any individual might make of the assessment. When they signed the assessment form they were to ensure that the assessment was fair and had been carried out in a consistent fashion with other assessments which they had done.  In regard to completion of the assessment forms, the Managers’ Assessment Guidance provided that managers were to be as specific as possible when giving their reasons for the scores.  When the assessment forms had been completed, matters were to be summarised in section D on the assessment form.  The assessment form was to be handed to the relevant individuals at the consultation meeting held at Stage 2 of the procedure.  The scores for all of the individuals were not to be provided to any one individual.  Consultation meetings were thereafter to take place with the individual(s) with the lowest score(s).

 

5.10      The BSS Managers’ Guidance redundancy selection process identified six separate criteria.  The specified criteria included: Service, Attendance, Disciplinary Record, Competency, Adaptability and Performance.  Specific guidance was provided in the procedure in respect of scoring.  There was mention made that an average performer would score 3 points (that is to say 3 points out of 5 in the specific category) but, nonetheless, the assessor was to try to avoid scoring all categories as a “3” and any assessor was encouraged to think of the standard required for the individual to carry out their role.

 

5.11      In respect of allocation of numerical scoring in regard to the six criteria identified, this was as follows: for "Service" the maximum available score was 5 points, for "Attendance" this maximum was 20 points; for “Disciplinary Record” there was specific provision which does not immediately concern this tribunal, as it is not material (none of the persons within the pool had any disciplinary record and accordingly there was no distinction made); for "Competency" there was a maximum of 20 points available per assessor; for "Adaptability" there was a maximum of 20 points per assessor, and for "Performance", again, there was a maximum of 20 points per assessor.  Further specific information was provided in the Managers’ Assessment Guidance concerning these assessment categories.

 

The Respondent’s Commercial Position and the Stated Need for Redundancy

 

5.12      At the material time, the trading position of the respondent company throughout the UK was giving significant cause for concern.  That fact, of itself, was not challenged by the claimant in these proceedings.  A determination was made that cost savings were required.  Savings identified included potential staff redundancies, throughout the UK.  In regard to the respondent's trading position in Northern Ireland, management determined the need for potential staff redundancies.  Again, the claimant did not endeavour substantially to challenge the respondent's evidence, which the tribunal accordingly found to be factually correct, that in Northern Ireland the trading position had significantly deteriorated from 2007 through to 2012; commercial trading results were down by 50% in that period.  The initially proposed redundancies identified for Northern Ireland included a number of different positions.  The tribunal accepted as factually correct evidence that in the period from 2010 – 2013 three female purchase ledger clerks and one male accountant were made redundant when work was moved to GB. In addition to that, a particular focus in 2012 was directed to the necessity for a reduction in showroom sales personnel and potential redundancies were identified concerning the positions of one showroom sales manager in Belfast (with a specific role identified), one showroom sales advisor in Lisburn (with a specific role identified) and also one showroom sales advisor to be drawn from those within the Belfast Branch.  The former two posts, as it transpired, did not require a further process on account of, respectively, a voluntary resignation and a disciplinary matter which led to the termination of employment (with a resignation in the course of the disciplinary process).   That left outstanding the potential redundancy in the Belfast branch of the post of one showroom sales advisor.  The respondent initially endeavoured to seek voluntary redundancies, but an invitation extended for voluntary redundancies did not meet with any success.  It was accordingly clear to management that a compulsory redundancy process would require to be implemented in connection with the post of one showroom sales advisor, located in Belfast.  The claimant specifically sought to challenge the identification of the post in the Belfast branch identified for such a compulsory redundancy and whether that ought properly to have been one specific post held by an individual or, alternatively, one post identified (and one redundancy consequently made) from a pool of selected persons.  The tribunal will make further observations regarding that contention, below.

 

5.13      It is now necessary to look at the subject matter of the claimant's contentions concerning the specific fact-finding task of the tribunal.  The claimant's various contentions concerned allegations of conduct alleged to have been visited upon the claimant both before and also after she departed on maternity leave.  The claimant's period of maternity leave commenced on 11 May 2012.

 

5.14      The claimant’s contentions in respect of the treatment alleged to have been accorded to her in the workplace prior to 11 May 2012 include a number of different matters.  In written submissions made on behalf of the claimant it was clarified that various allegations concerning conduct and events prior to the claimant departing on maternity leave, in May 2012, were what might be referred to as “historical incidents of sex discrimination”; any such were not contended to be other than matters portraying a particular context or “workplace culture” in regard to which the tribunal was invited to examine the primary contentions made by the claimant relating to alleged unfair and discriminatory conduct and allegations of other unlawful behaviour.  The point was made on behalf of the respondent that none of these alleged matters had formed any part of any formal grievance taken by the claimant; indeed many had not been voiced by the claimant until these tribunal proceedings were in train.  It was asserted, for the respondent, that many of these "historic" (that is to say matters allegedly occurring prior to May 2012) allegations were “out of time”.  The submissions made on behalf of the claimant were advanced, accordingly, on the basis that any facts (in the specific area of “historical incidents of sex discrimination”) such as might be established, were contended to be proper matters from which the tribunal was invited to draw conclusions and inferences adverse to the claimant in support of the claimant’s primary allegations of unlawful discrimination and other improper conduct.  The tribunal is grateful to the claimant’s representative for clarifying the context in which allegations relating to these specific matters were advanced. 

 

The Role of Jim Watson and the Showroom Sales Advisers

 

5.15      Part of the evidence which follows and consequent findings of fact was not substantially in contention.  However, there were some matters of significant diversion of view or interpretation in respect of which the tribunal was required to reconcile some quite conflicting evidence and matters of contention. In the period of time prior to the claimant's departure on maternity leave in May 2012, the claimant was the only female showroom sales advisor based in Belfast.  The other showroom sales advisors were named Ryan Smith, Conor Barnes and John Walsh. There was also an employee named Jim Watson.  It is necessary to look a little at the job function carried out by Jim Watson and how that was changed. Jim Watson had been employed by the respondent as a showroom sales advisor, commencing on 13 March 2006.  That remained his job title but elements of his job function had changed, by agreement with management, at some time, so the tribunal understands it, about 2010.  These changes to Jim Watson’s function entailed his having more of a support or administrative role and accordingly he had somewhat less of a “customer facing” role.  He was primarily involved in office stock control and administrative work in support, to “take the pressure off the sales team”, as he put it in his evidence.  He did not personally conduct sales work.  His function included meeting with and introducing customers who would then have the actual sales processed by the claimant and the other showroom sales advisors.  Until the claimant's absence on maternity leave, Jim Watson was not normally based in the showroom.  His function, nonetheless, did involve standing in for and carrying out the same functions as the showroom sales advisors, in order to provide cover for sickness, holiday leave and other absences.  However, he did not conduct sales in his own name.  In summary therefore, Jim Watson's primary job functions were not the same as those of the other persons who held the job title of “showroom sales advisor”, although there was, of necessity, some degree of overlap for absence cover purposes and his role was closely connected to those others with that job title, but in an administrative support function.  Notwithstanding differences in job function, Jim Watson’s job title remained unchanged.

 

5.16      After the claimant went on maternity leave in May 2012, Jim Watson was assigned to carry out his work at the desk in the showroom area which had been occupied by the claimant prior to her departure on maternity leave.  Indeed, the claimant observed Jim Watson at this location when she called into the office after her child had been born.  Jim Watson’s duties continued throughout the period of the claimant’s absence on maternity leave in a relatively unchanged form to those performed by him prior to the claimant's departure, save for the location at which he carried out his work duties.  Having examined all of the evidence, the tribunal does not accept the proposition that Jim Watson carried out the claimant’s duties, in her place, whilst she was absent on maternity leave.  Furthermore, there is no persuasive evidence that Jim Watson entirely or substantially performed the claimant's work duties after the claimant ceased to be an employee of the respondent and, accordingly, the tribunal's finding is that this is not the case, notwithstanding the claimant’s assertion.

 

The “Workplace Culture and Attitude” Allegations and Other Matters 

 

5.17      Turning then to the specific “historical incidents of sex discrimination” allegations, firstly, in broad terms, the claimant alleged that there existed a “macho” or “laddish” culture within the workplace in the Belfast premises.  Examining the evidence, that particular suggestion was put forward based upon what were contended on behalf of the claimant to be various illustrations of alleged conduct supporting the existence of such a culture.  To take one illustration of this, the claimant's evidence made reference to one occasion when the respondent arranged for a promotional evening to take place, what was known as a “Casino Night”.  The respondent's management had arranged for the hire of “tuxedos” on behalf of the male showroom staff.  The claimant asserted, as part of her case, that no such (equivalent) provision had been made for her.  There was another female employee named Sinead Burns who was also due to attend this event.  There was a certain amount of conflicting evidence surrounding this issue, but the tribunal’s assessment of the facts, on balance, is that the claimant did mention to management an issue about the need for her to get prepared for the event and the claimant was permitted by management to take a half day’s leave on the afternoon before this event in order to attend a hairdressing salon in preparation.  The claimant did not expressly request any concession or accommodation in respect of dress hire.  She did not raise any specific grievance at the time concerning the manner in which this event had been arranged by management and the issue of the dress hire on behalf of the men.  The tribunal's best understanding of the respondent's management’s thinking in respect of this is that an assumption appears to have been made by management that most male employees would not own a “tuxedo” but that any female employee would have had something of relatively appropriate dress which might be worn on such an occasion.  For this event, as it transpired, the claimant wore a dress and Sinead Burns wore a blouse and trousers.  Nothing further appears to have been made of the issue at the time by the claimant, by way of grievance or complaint. 

 

5.18      A further illustration of the allegations made by the claimant concerning the workplace “culture” related to the issue of what might be described as “workplace banter”.  From all of the evidence it is clear to the tribunal that in the respondent's Belfast branch there was a prevailing “culture” where crude and sexually explicit language or references might be made by various members of the workforce in the showroom sales area and other work areas.  For her part, the claimant readily conceded in her evidence that she personally engaged in this type of activity and “banter”.  Examining all of the evidence, the tribunal finds that the claimant did so willingly and did not engage in this type of activity under any duress.  Indeed the claimant was at times the instigator of some of these references and comments, as she herself candidly conceded in her evidence to the tribunal.  There were few specific references made to assist the tribunal in its findings of fact in regard to the issue of “workplace banter”.  There was however evidence given by the claimant concerning what was stated to be a “running joke” on the part of the respondent's Area Sales Manager, Eamonn McCarthy, where the claimant alleged that references were made by Eamonn McCarthy to her wearing matching underwear. In his evidence Eamonn McCarthy denied knowledge of any such references being made by him.  It was difficult for the tribunal, in the light of this conflicting evidence and weighing it appropriately, to make a positive finding of fact in support of the claimant's assertions that Eamonn McCarthy did engage in unwelcome and inappropriate banter of this type. Examining all the evidence concerning the issue “workplace culture” or “workplace banter”, the tribunal does not on balance find any specific instances of what might properly be deemed to constitute sexual harassment at work visited upon the claimant.  There was certainly workplace “banter”, however the claimant was by her own concession a willing participant in such activity and at times she was an instigator.  The tribunal does not, from all of the evidence, make findings of fact sufficient to support the proposition advanced by the claimant that there existed in the respondent's Belfast workplace an atmosphere which was specifically “macho” of “laddish” or which was, or which might properly be deemed to be, denigrating, demeaning, unwelcoming or offensive to the female sex.  Specifically regarding the “banter” issue, the tribunal’s conclusion might perhaps have been somewhat different if there had been clearer and more compelling evidence concerning unacceptable workplace banter or conduct visited upon the claimant, in regard to which the claimant had not freely participated or indeed on occasions been the instigator.  Nothing adverse to the respondent arises from the evidence adduced in this regard.

 

5.19      Another specific issue raised by the claimant relates to the allegation of her of being “bypassed” regarding the allocation of sales.  In her evidence to the tribunal, the claimant alleged that sales had been specifically directed by the Area Sales Manager, Eamonn McCarthy to the employees, John Walsh and Ryan Smith.  The claimant’s contentions also to a degree touched upon sales referrals made by Karl Hegney (an employee of the respondent who became Belfast branch manager on 1 June 2013, replacing George Hillock in that role and previously having held the role of Key Accounts Manager) and also by Ken Kinkead, the respondent’s Regional Director for Ireland.  Karl Hegney’s evidence, which was accepted by the tribunal, was that he did not specifically direct sales to any particular showroom sales advisor during the time prior to the claimant's departure on maternity leave.  Karl Hegney stated that in the four months since he had become Belfast branch manager he had only directed one sale to the showroom personnel in that time.  He had a vague recollection of the claimant raising some issue with him about sales referrals, but this had never taken the form of any formal grievance or complaint.  The tribunal finds no compelling evidence that Karl Hegney had been instrumental in the claimant being specifically bypassed in regard to sales referrals.  Further, in respect of the contention advanced in the claimant's case that Ken Kincaid, the respondent's Regional Director for Ireland, was responsible for bypassing the claimant in respect of sales referrals, the tribunal finds that there is no persuasive evidence that that was the case.

 

5.20      The primary focus of the claimant's case, in respect of work referrals which allegedly bypassed her, was directed towards Eamonn McCarthy.  In his evidence, Eamonn McCarthy confirmed that he did make work referrals.  These referrals were specifically in regard to business from friends, family and certain business contacts of Eamonn McCarthy.  The frequency of Eamonn McCarthy’s referrals were about one or two per month and these were referrals for sales either to John Walsh or to Ryan Smith.  These sales referrals were not made either to the claimant or to her colleague Conor Barnes.  Eamonn McCarthy was quite forthright in his evidence concerning these, stating that these referrals were made by him for the reason that the two persons to whom referrals were made, Smith and Walsh, were highly regarded in terms of sales and product knowledge and also were the longest serving with the respondent company.  At no stage did the claimant ever complain about this to Eamonn McCarthy nor did she ever raise a formal grievance complaint.  According to his evidence, which was accepted by the tribunal as accurate, the first time this was brought to the attention of Eamonn McCarthy was in the course of the redundancy consultation process at a meeting that took place on 6 December 2012.  At this meeting, in accordance with the note made, the claimant raised this issue with Eamonn McCarthy.  Eamonn McCarthy sought fit to apologise if the claimant had felt she was being bypassed by the work which Eamonn McCarthy had brought into the showroom.  He provided to the claimant the explanation that when he had given the longest-serving member of staff (identified by him as Ryan Smith) work to do and that had been done well, he tended to go back to him.  The claimant then mentioned that work had been directed also to another member of staff as well.  In reply Eamonn McCarthy expressly referred to John Walsh and he stated that he regarded John Walsh as having superior showroom knowledge and he indicated that he tended to get John Walsh to price some work when he himself was under pressure.  Eamonn McCarthy stated that he felt that he had got a great job done by these persons, but again he apologised to the claimant if she had felt bypassed; he stated that had never been his intention.  The tribunal examined the facts concerning these referrals insofar any evidence might permit the drawing of potential inferences of unlawful discrimination.  The tribunal observed that Conor Barnes, in common with the claimant, did not have the benefit of any such sales referrals.  Examining any motivation for such referrals, the tribunal has been provided with an explanation by Eamonn McCarthy.  The explanation afforded is connected with the factors identified and the reasons given by him.  The disadvantage of any non-referral on the part of Eamonn McCarthy was shared between a male, Conor Barnes, and a female, the claimant.  The tribunal does not accept the claimant’s contention that this perception of her being “bypassed” is connected with her gender; a male was equally disadvantaged to her and there was a rational reason provided for these referrals by Eamonn McCarthy.  Again, the tribunal would wish to emphasise that the claimant sought to advance this contention not as constituting a claim for direct sex discrimination but rather as a matter from which appropriate inferences in support of her allegations might be drawn.  The tribunal does not conclude, on balance, that inferences adverse to the respondent might properly be drawn from this.

 

5.21      Another significant issue raised by the claimant related to alleged conduct towards her in the workplace concerning episodes of “morning sickness” experienced by her in the course of her pregnancy.  It appears that the claimant did suffer quite badly from morning sickness and at times she became physically ill at work and she had to use the disabled toilet in the work premises, which the tribunal understands was located close to the showroom floor.  The claimant’s contention was that George Hillock was extremely unsympathetic to her when she became unwell and remarked to her that she was “only pregnant” and to “deal with it”.  She also contended that the other showroom sales advisors made light or made fun of her condition and of these episodes of “morning sickness”.  The claimant made the suggestion that Ryan Smith and John Walsh specifically laughed and made fun of her.  In his evidence to the tribunal, George Hillock was quite emphatic in his denial of the allegation that he had been extremely unsympathetic to the claimant.  He stated that he had been taken aback and insulted at this suggestion and he stated that he had indeed been very lenient towards the claimant on many occasions in connection with childcare and other issues.  He asserted that he would never have made any such specifically derogatory or unsympathetic comments to the claimant as had been alleged.  Noting that the claimant, otherwise, appeared to have had quite a positive and a good working relationship with George Hillock at all times, on balance the tribunal accepts the evidence of George Hillock in that regard.  This is so when set in the context that no specific allegations or grievances had been raised by the claimant at the time and further noting the claimant's confirmation in her evidence that George Hillock had been generally supportive to her in the workplace and indeed that was reflected in the claimant's attitude to George Hillock at the time of the redundancy process.

 

5.22      Ryan Smith indicated in his evidence to the tribunal that he regarded himself as being a very good and close friend to the claimant.  He stated that he remained a “Facebook friend” of the claimant at the time of the tribunal hearing.  For the claimant, it was pointed out that that assertion had not been put to the claimant and accordingly the tribunal attached little weight to the assertion.  There was however no suggestion of any personal animosity and the tribunal generally accepted the evidence of Ryan Smith that he had had a good relationship with the claimant which continued after the termination of employment. Ryan Smith felt that all the showroom sales advisers had had a very good relationship.  In respect of the “banter” issue Ryan Smith stated that the claimant had often instigated these comments.  He informed the tribunal that he had been extremely sympathetic to the claimant and, indeed, he gave evidence that he had helped clean up after the claimant had been sick on at least one occasion.  John Walsh was not called as a witness in the matter.  The allegations made by the claimant against John Walsh related to John Walsh having made a derogatory comment in 2010 concerning the claimant that a customer would not go to her because she was a woman and also that John Walsh was unsympathetic concerning the claimant's episodes of morning sickness.  Conor Barnes was stated to be a witness to these matters, but in his evidence Conor Barnes, whom the tribunal found to be an entirely credible witness, did not support the proposition that there was any substance in these allegations.  Examining the totality of the evidence, on balance the tribunal does not conclude that there was any specific making fun of the claimant in regard to her pregnancy or morning sickness.  There is no compelling evidence that any persons in the workplace behaved inappropriately or were unduly unsympathetic or harsh towards the claimant in regard to her condition or pointedly displayed an unsympathetic, dismissive, or hostile attitude towards the claimant on account of her gender or issues of pregnancy or maternity.  Neither George Hillock nor any other member of staff, on the balance of the evidence, displayed inappropriate conduct or attitudes towards the claimant regarding her pregnancy or morning sickness, or in general terms made derogatory or unwelcomed remarks towards the claimant based upon her gender.  There was certainly workplace banter which, for example, Conor Barnes portrayed in his evidence to the tribunal as being an everyday occurrence.  Conor Barnes had come from a previous working environment where this did not occur.  He was a little shocked at first but then, as every member of staff including the claimant freely participated in this conduct, which Conor Barnes pointedly described as being both “laddish” and “girlish”, he understood that it was just part of the accepted workplace conduct and that no one took offence.  Examining all of this, there was nothing in the evidence sufficiently persuasive in nature to enable the tribunal to draw particular conclusions of fact from which inferences adverse to the respondent might be drawn, concerning these issues.

 

The Respondent’s Redundancy Process

 

The Selection of the Redundancy Pool

 

5.23      Whilst the claimant was on maternity leave (her baby having been born on 17 May 2012) the respondent's scrutiny of the need for potential redundancies and how these might be applied proceeded.  The respondent’s HR Department identified a pool of persons for potential selection for redundancy with a view to making one post redundant, that of one Belfast showroom sales advisor.  A matter which was substantially in contention, as far as the claimant was concerned, relates to the inclusion of Jim Watson in the redundancy selection pool.  By the fact of Jim Watson’s inclusion, this pool consisted of five persons.  Accordingly, included were the claimant, Jim Watson, John Walsh, Ryan Smith and Conor Barnes.  The claimant’s contention was that Jim Watson ought not to have been included in the pool.  The assertion made was that Jim Watson's post, at the material time, was entirely different to that of the other persons employed as showroom sales advisors, including the claimant.  It is certainly the case that at this time Jim Watson occupied a post where he continued to be designated by his job title as a "showroom sales advisor". However his work duties had changed, as mentioned above.

 

5.24      Examining how the respondent managed the selection of persons to be included in the pool of employees who might potentially be made redundant, the tribunal believes that the respondent had a rather difficult task to undertake.  The applicable BSS Managers’ Guidance provides as follows:-

 

                        “If a Group of Employees are potentially affected (eg, a number of individuals with the same job title or doing the same role)….”. 

 

                      The persons charged with identification of the pool were therefore, in accordance with these provisions, expressly entitled to select for inclusion in the pool a number of individuals “with the same job title”.  This “same job title” of course also applied to Jim Watson.  Examining the wording, Jim Watson was not “doing the same role” as the others, in the sense that the full range of his job duties was exactly the same or similar to the others.  Nonetheless, he was engaging in a similar role to the others to an extent, in providing cover when they were on leave or on the lunch breaks and he was providing administrative and other support to those who were performing this function, such as the claimant.  He did not however have a specific sales function in his own right.  As was submitted by the respondent’s representative without apparent objection on the part of the claimant’s representative, good industrial relations practice does not prohibit the inclusion within a redundancy pool of persons who are not performing the same job function; there is no specific requirement that that be the case.

 

5.25    The difficulty, very clearly, was that if the respondent had sought fit to exclude Jim Watson from the pool, it might very well have been open to anyone, perhaps to the claimant, to have advanced the argument that Jim Watson had been improperly removed from any potential risk of redundancy and that this had been done in breach of the express written procedures, to the detriment of any person otherwise included in the pool.  However, the claimant’s argument approaches this issue from a different perspective.  The claimant’s submission is that Jim Watson’s post ought to have been identified as being redundant.  In seeking to advance this argument the claimant contends that the specific post occupied by Jim Watson should have been made subject to a redundancy and not the post of one of the other persons who were, as it transpired, included within the pool.  Examining all of the evidence, the tribunal cannot find support for this proposition.  This is so for the reason that there is nothing of any real substance to support the suggestion that Jim Watson’s post ought to have been made redundant, rather than one post of showroom sales advisor to be drawn from the pool of persons selected.  There is nothing to support the conclusion that the decision in that regard by the respondent was flawed.  The tribunal's conclusion is that the respondent genuinely applied its mind to the problem of identifying the pool from which the person to be selected for redundancy would be drawn.  The decision concerning whom was properly to be included in the pool was one which was ultimately taken, it seems (for example from the evidence of George Hillock), not by local management but rather by the respondent’s HR Department.  Accordingly the five persons selected to be part of the pool were, in accordance with the stated policy, in the determination the tribunal, properly included within the pool by the respondent.

 

The Redundancy Scoring Process

 

5.26    The respondent’s HR Department was responsible for the management and ultimate control of the redundancy process.  It seems that the person in the respondent’s HR Department who had immediate charge of the process and who was in the liaison with local management was called Samantha (“Sam”) Hughes and that she was based at the respondent’s head office in Northampton.  George Hillock and Eamonn McCarthy were selected and charged with the conduct of the redundancy scoring process.  The HR Department had devised scoring sheets connecting to the redundancy selection criteria.  In submissions made on behalf of the claimant, firstly, the appointment of Eamonn McCarthy to conduct this function was challenged as being inappropriate. No challenge was made to George Hillock’s role (in his capacity as Belfast branch manager) in that process.  Eamonn McCarthy was the respondent's Area Sales Manager.  The tribunal heard evidence regarding Eamonn McCarthy’s role and function and his interaction with the Belfast branch and specifically with the sales team comprising the showroom sales advisors who were to be included within the pool selected.  The tribunal noted that part of the Managers’ Assessment Guidance, Stage 1, which provided in these terms: “The [assessment] form should be completed by a panel consisting of a least two Managers and/or Supervisors who possess the best knowledge of the individuals.”  In submissions made on behalf of the claimant, it was asserted that the appointment of Eamonn McCarthy was inappropriate, as he did not have the proper knowledge of the claimant and of her work.  When challenged as to who would have been more appropriate, the submission was made on behalf of the claimant that it was not for the claimant to suggest a more appropriate person.  There was however no evidence adduced, bearing in mind that the panel, in accordance with the specified procedure, had to consist of two persons, of any person other than Eamonn McCarthy, who together with George Hillock might have fulfilled this role. The logic behind the suggestion advanced on behalf of the claimant is that the redundancy exercise, being inclusive of the claimant, ought not to have proceeded at all in view of the challenge made to the appropriateness of Eamonn McCarthy.  Having noted the evidence and having taken account of the submissions, the tribunal’s conclusion is that the decision to appoint both George Hillock and Eamonn McCarthy was a rational and was a reasonable one permissibly to be taken by the respondent.  This is so for the reason, firstly, that Eamonn McCarthy was a senior manager who professed to be familiar with the role and work of the claimant and the tribunal saw no persuasive evidence that that was not the case, secondly, that there was nothing inherently existing as a bar to, or rendering inherently unfair, the inclusion of Eamonn McCarthy in this function and, thirdly, that there was no evidence that any more suitable person, in accordance with the specified procedure, at managerial level other than Eamonn McCarthy might have performed this task in conjunction with George Hillock, with whom of course no objection had been taken.

 

5.27    There was also a challenge made to the selection criteria which were asserted on behalf of the claimant to be “entirely subjective”.  There are six identified categories.  The first one, “Disciplinary”, is assessed by the tribunal as being fully objective.  This cannot be, in any manner, subjective for the reason that matters of disciplinary record are matters of recorded fact and not of subjective opinion.  The second category, “Competency” is a category which is capable of both objective and subjective assessment.  This category was assessed to a maximum of 20 points per assessor, by the assessment of factors such as knowledge, skills, qualifications and ability to work with others.  The third category, "Adaptability", appears to the tribunal to be fully or largely subjective.  This was assessed to a maximum of 20 points per assessor, according to the categories of flexibility, willingness to accept change, application of learning and experience and ability to work outside of close supervision or control.  The next category, "Performance", is part-subjective and part-objective.  This had available a maximum of 20 points per assessor and was assessed having regard to the categories of work rate/working to deadlines, quality/accuracy, attitude, and meeting objectives.  The fifth category, "Service", is objectively assessed, with a maximum of five points available.  The sixth and final category, "Attendance", is assessed objectively, being based upon factual records; it had available a maximum of 20 points.  Notwithstanding the endeavour made in submissions on behalf of the claimant to assert otherwise, clearly there is a mixture of both objective assessments and also subjective assessments requiring to be applied.  These are dependent upon whether the categories were fully or partially objective or subjective categories of assessment.  Accordingly, the claimant together with the other members of the selection pool, was scored in accordance with such objective or subjective assessments as far as this part of the exercise was concerned.  In view of the submission made on behalf of the claimant, the focus of the tribunal was directed to the subjective or the partially-subjective categories of assessment which arose in the exercise.  It must be mentioned that the redundancy selection criteria did not include sales figures or sales performance as a criterion and accordingly any effect of any sales not being specifically referred to the claimant, or of the claimant being absent on maternity leave, would not have been specifically reflected in the redundancy scoring exercise.

 

5.28    In regard to that part of the claimant’s claim which relates to unfair dismissal, the tribunal reminds itself that it must not be in any way involved in the substitution of its own view for that the employer, based upon a minute and inherently subjective (as far as the tribunal might be concerned) examination of redundancy scoring or marking, to the extent of effectively conducting its own, impermissible,
re-assessment of the redundancy exercise.  Accordingly, entirely so as to examine matters for the purposes of the claimant’s claims of unlawful discrimination, the tribunal examined evidence emerging from the completed assessment scoring sheets which, as mentioned, had been completed by George Hillock and by Eamonn McCarthy.  The tribunal paid particular attention to those scoring sheets where there had been scorings made of either two or three points.  It was noted that some scorings appeared to have been amended from a “two” to a “three”.  The particular focus was upon any apparent changes or amendments applied to the assessment sheets in respect of Jim Watson (the person who scored second lowest) and those of the claimant (who scored the lowest) in comparison to other persons.  The claimant's particular allegation was that the process had been engineered to favour Jim Watson (who it was contended ought to have been dismissed as redundant instead of the claimant) in a discriminatory manner so as particularly to disadvantage the claimant, ultimately resulting in her dismissal.  If the process had been designed or had been operated in such a discriminatory manner so as to favour Jim Watson, it would have been anticipated that some evidence of this approach might perhaps have been present from an examination of the redundancy scoring assessment sheets.

 

5.29    These apparent amendments included amendments to scoring totals in certain categories and also at the bottom of each scoring sheet.  This had not been explored in the course of the quite detailed oral evidence given in the case, but nonetheless the tribunal had before it this evidence as part of the documentary evidence adduced in the case, such as it was.  The original scoring assessment sheets were not produced in evidence.  In the tribunal’s best interpretation of matters, from the copy sheets a number of scorings which originally were, in all probability, “two” had it seems were subsequently been changed to read “three”.  From the copies available, there appear to be amendments made to the resultant scoring totals appearing below the individual figures.  The tribunal noted the evidence given that each of the two assessors had, independently one of the other and stationed in their own offices, individually conducted the scoring assessments.  Such assessments had been based either upon their own personal assessments and knowledge of the persons in the redundancy selection pool, or else based upon information supplied by the HR Department (for example attendance or disciplinary records).

 

5.30    Whilst the evidence was that the two assessors had conducted their assessments individually, the tribunal had very little further information as to what actually transpired thereafter.  Examining the respondent's written procedures, it is made quite clear that assessors were intended to consult after arriving at their own individual assessments.  Accordingly the assessors were to conduct some type of a “moderation” process, in regard to their individual scorings.  However, as mentioned, this part of the process was not explored in the evidence elicited in the hearing.  If that was the approach actually taken, as was supposed to be the case, this might well have accounted for the apparent amendments made to the scorings.

 

The Claimant's Assertions Regarding an Unfair Scoring Process

 

5.31    Concerning the primary contention on the part of the claimant that things were designed to favour Jim Watson and engineered to her disadvantage, when an analysis is made of any apparent amendments (with scrutiny of the possible “original” scorings of, for example, “two” which then subsequently had apparently been amended to read “three”, in both the cases of Jim Watson and also of the claimant) it is noted that the “original” potential outcome would have still favoured Jim Watson.  The scores appear to have been only amended upwards in both cases in respect of the three categories of Competency, Adaptability and Performance, with Jim Watson, as far as the tribunal could observe, having five instances of what might have been “two” amended to “three” by George Hillock, and three of what might have been “two” amended to “three” by Eamonn McCarthy, thus seemingly adding 8 points.  In the claimant’s case there appeared to be two instances of what might have been “two” amended to “three” by George Hillock, and three of what might have been “two” amended to “three” by Eamonn McCarthy, thus seemingly adding 5 points.  There was accordingly an apparent disparity of three additional points between the two persons.  The two final scores of the claimant and Jim Watson were nonetheless adrift by 10 points.  This does not in any manner show that the two persons scoring were engaged in some manner of a conspiratorial exercise unfairly and improperly to construct or to amend the original scoring of the assessors in a manner which was ultimately to be determinative of the outcome in favour of Jim Watson and against the claimant.  The tribunal records these observations from an examination of the documentation adduced in evidence in order to explore if there existed any persuasive evidence of scorings being adjusted in this manner in order conclusively or decisively to favour Jim Watson in the eventual outcome.  The tribunal's conclusion is that the scorings were adjusted (if not before and by the assessors individually) then probably as part of a consultation process engaged in between the two assessors after their individual scoring had been completed, but without any specific exercise being conducted that was designed or intended to disadvantage the claimant and to be determinative of a positive outcome in favour of Jim Watson, or a negative outcome for the claimant.  Such a consultation process between the assessors would have been quite permissible and indeed would have been in accordance with the specified procedure.

 

5.32    The stated procedure encourages any assessor to avoid routinely scoring a “three”.  For the claimant in submissions the proposition was put forward that both assessors had failed in that respect.  However, conducting an examination of the remarks or observations made by the assessors in the scoring sheets and examining the scoring outcomes, the tribunal did not observe that there was any clear and obvious disparity of approach taken as between Jim Watson and the claimant, nor indeed compared to any persons within the pool who might have scored more highly in the process.  Accordingly the tribunal's conclusion is that there was no evidence indicative of any intent or plan to cause disadvantage to, or to "mark down", the claimant or to "mark up” Jim Watson on the part of either assessor.  Whilst the claimant wished to have the tribunal closely examine, in minute detail, the assessment markings and the corresponding comments made by the assessors and to assert a disparity between markings and comments, ultimately this was a fruitless invitation.  The tribunal was being invited, for example, perhaps in respect of a disparity of one point as between the claimant and Jim Watson, to interpret a specific assessor’s comment and to find some manner of unfairness or of unlawful discrimination at work. If there had been specifically telling illustrations or examples existing of a strong or very evident and striking or inescapable disparity of approach, that would have been one thing.  If there had been sound evidence of a specific category of assessment where the claimant was expected to have scored highly, but which was assessed at an unexpectedly low level, that might have been a telling factor.  However, the tribunal did not detect anything of that kind in such an examination as it was permissible to make. Indeed the tribunal recognized that there is inevitably, in such matters, a degree of discretion and individual means of expression or description available which, unless there is otherwise clear and compelling evidence that any judgment or discretion is being exercised in an impermissible or a discriminatory manner, shall not lead readily to any adverse conclusions or inferences.  Accordingly, notwithstanding strenuous contentions being advanced on the part of the claimant’s representative that the scoring displayed manifest bias against the claimant and that a high degree of subjectivity was made available to the assessors in this exercise which was exercised unfavourably and so was to disadvantage the claimant, the tribunal does not conclude that there is clear and compelling evidence of such an adverse approach emerging from the conduct of the scoring exercise on the part of either George Hillock or Eamonn McCarthy.  It was of course the outcome to the scoring exercise which led to the dismissal of the claimant as being the lowest-ranked candidate in the redundancy selection pool, in this exercise.

 

5.33    The tribunal further observes that, having been afforded the opportunity to examine the scoring assessments which were provided to her, the claimant felt that George Hillock in his assessments had dealt with her fairly and properly.  She indicated that at the time and indeed she repeated that in her examination-in-chief on the first day of the hearing. In contrast to that view, she felt that the scoring assessments of Eamonn McCarthy had been unfair.  Despite this, upon examination of the respective scoring assessments, these do appear to be very closely similar as between the two assessors in respect of each category of assessment.  On account of this, the tribunal had considerable difficulty in understanding how the claimant might have adopted such a difference in view concerning how she believed George Hillock had conducted the assessment and her very unfavourable view of Eamonn McCarthy's assessment.  The claimant did endeavour to resile from this position in the course of the hearing and towards the end of her cross-examination, but the tribunal found this to be inconsistent with her earlier evidence and ultimately not persuasive.

 

5.34    That claimant's disparity of view as between the scoring outcome emanating from George Hillock’s assessment and Eamonn McCarthy's assessment was a theme emerging in a number of places in the case.  In the apparent absence of any objective basis or rationale for this view (such as for example might have perhaps emerged from a significant disparity between the scorings), this appears perhaps to have been motivated more by some manner of antipathy felt by the claimant towards Eamonn McCarthy rather than anything grounded upon any proper, rational, assessment of whether there was indeed a distinction made or evident disparity of approach.  In these proceedings the claimant now endeavours to assert that it was only after these events, when she has had a chance to examine George Hillock’s conduct in the course of her pursuit of this tribunal claim, that she now has doubts concerning George Hillock’s fairness towards her.  That somewhat belated stance is inconsistent with the claimant's attitude towards George Hillock throughout the greater part of matter.  The claimant asserts that this is because she has, in taking these proceedings, had an opportunity to examine all of the scoring sheets.  The assertion remains however vague and unspecified.  It is called into assistance in the claimant's case without any real or substantive basis being present in, or emerging from, the evidence.

 

The Various Stages of the Redundancy Process and the Claimant's Contentions

 

The Stage 2 (First Meeting) - 29 November 2012. 

 

5.35    The first formal meeting stage of the redundancy process took place on 29 November 2012.  The claimant’s assertion in these proceedings is that there was no explanation for the assessment scoring nor of the rationale behind this. It is noted that the respondent’s process does require that the rationale must be explained to any effected employee.  At the first meeting (under the Stage 2 process) the claimant requested an opportunity to give some consideration to the scorings and assessments. Consequently, she requested that any discussion of this would be deferred until the next meeting.  This request was properly and reasonably granted and the requested opportunity was thus afforded to the claimant to examine the assessments.  It is noted that there was no absolute obligation to explain the scoring and assessment to the effected party at this first meeting.  Accordingly, the respondent behaved quite properly in that regard and in accordance with the stated policy.  That was challenged on behalf of the claimant as not being in accordance with the stated policy, but the tribunal's finding is that there is no substance in, or basis for, that specific ground of challenge.

 

The Stage 2 (Second Meeting) - 6 December 2012

 

5.36    The second meeting under this stage proceeded on 6 December 2012.  There was a detailed note taken of that meeting which was made available to the tribunal.  The claimant had made the suggestion of part-time working hours at the first meeting which had taken place on 29 November 2012.  This topic again emerged at the second meeting.  George Hillock’s evidence was that he had promised to explore this and that he had explored this option after the first meeting and before reconvening.  This proposal, in effect, would have involved the other showroom sales assistants voluntarily agreeing to a reduction to their own working hours.  The claimant herself had raised this possibility with the other showroom sales assistants but she had found no support for the suggestion.  George Hillock stated in his evidence to the tribunal that this had been explored with the other showroom sales assistants and had been put to the HR Department, but that George Hillock had been told by the HR Department that this was not an option.  The tribunal understands that the person in the HR Department responsible for informing George Hillock of that was Samantha Hughes, who was providing the support and advisory function in connection with the redundancy process.  The tribunal’s best understanding of what transpired was that it was fully communicated around the workplace that the claimant had spoken with the other showroom sales advisers about part-time hours but that she had met with no positive response whatsoever.  George Hillock was aware of that and he raised the matter himself with the HR Department and he was informed that this was not possible.  The combination of these things confirmed very clearly in George Hillock’s mind that there was no possibility of part-time hours.  One of the issues raised by the claimant at the appeal meeting which followed her dismissal was that she had never had a confirmation of the outcome of her request for part-time hours.  It appears that the issue became intertwined with other issues (for example a potential vacancy that might have arisen with the ending of employment of the showroom sales adviser in the Lisburn branch) but that George Hillock might have omitted to provide a formal response to the claimant regarding her request concerning part-time hours at the second meeting.  The respondent's note of that meeting, which was held on 6 December 2012, does not appear to record any mention of the issue of part-time hours raised either on the part of the claimant or the respondent’s personnel.  However the transcript of Jane Healey’s notes does appear to make mention of a request by the claimant to go part-time, but no answer is recorded in the note on the part of either Eamonn McCarthy or George Hillock.  If this latter note is correct and if there was no formal response either towards the conclusion of the meeting or thereafter, that is certainly an omission, but nonetheless the claimant could have been in little doubt about the position as a result of her own conversations with the other showroom sales advisers and the lack of any effective or positive confirmation by the respondent that part-time hours working was a feasible possibility.  The claimant was medically examined by Dr Philip McGarry FRCPsych on 9 September 2013 for the purposes of these proceedings and a copy of Dr McGarry’s report dated 13 September 2013 was included with the documentary evidence placed before the tribunal and the content of that report was considered by the tribunal.  As was pointed out in submissions on behalf of the respondent, it is recorded in Dr McGarry’s report that the claimant had stated that she had spoken to a number of (work) colleagues and she had put a proposal to management that she would work part-time, on the basis that some of the other staff would reduce their hours; however she was told that this would not be acceptable.  The tribunal concludes from this that the claimant, at some stage, must have been told quite definitively that her request for part-time hours would not be acceptable by the respondent in order to leave her in no doubt concerning the issue.  Whilst mentioning the report from Dr McGarry, the tribunal also noted from a reading of the medical report that Dr McGarry records references made by the claimant to the fact that she “loved her job” and “enjoyed meeting people and selling to the public” and, apart from some negative references to the specific details of the redundancy process, the only other adverse comment recorded as having been made by the claimant to Dr McGarry was that she felt that one manager (unnamed) had had a generally “dismissive” attitude towards her for some time and that she had been made to feel that she “wasn't important”.  There are no references whatsoever made in the medical report to any of the matters raised in this case amongst the category of “ historical incidents of sex discrimination” nor was the claimant critical of any other individual save in regard to that specific manager, as far as Dr McGarry's observations record.  Although the manager is not named, the tribunal’s conclusion is that this very probably was intended to be an allusion to Eamonn McCarthy.  There is also a brief reference made in the medical report to the claimant stating to Dr McGarry that one of the managers (again unnamed but, again, very probably intended to be a reference to Eamonn McCarthy) would sometimes come in with a big order and give it to one of her male colleagues, thereby boosting their figures.  This presumably is intended to be a reference to the bypassing issue.  It is noted that there is no allegation that anyone other than this one manager was involved in that activity. Whilst the tribunal fully appreciates that the information imparted by the claimant to Dr McGarry was necessarily selective and possibly elicited in response to Dr McGarry's questioning, it is however noted that allegations now made in the claimant's case before this tribunal were not recounted in her description of the issues seemingly of significant concern to her when Dr McGarry was conducting his interview of the claimant on 9 September 2013, a relatively short time before the commencement of the hearing in these tribunal proceedings and in contemplation of the proceedings.

 

5.37    It has been contended on behalf of the claimant that Eamonn McCarthy’s demeanour in the course of the second meeting displayed the unfairness of approach and the discriminatory conduct on the part of the respondent.  It was very clear and he did not endeavour to deny this, that Eamonn McCarthy was extremely uncomfortable about his role and function in the course of the second meeting.  It was put to Eamonn McCarthy in cross-examination that he was required by the process to have confidence and belief in the decision-making and in the function which he was required to perform and that he manifestly did not do so, thereby portraying that the process had been conducted in an unfair manner and in a way which was manifestly less favourable to the claimant.  That proposition was strenuously rejected by Eamonn McCarthy in response to this questioning.  Eamonn McCarthy spoke to the tribunal about his discomfort with the process from the perspective of a manager who found the prospect of making an employee redundant to be a very difficult matter.  The tribunal noted Eamonn McCarthy's perhaps understandable human reaction to being tasked with this function and found his evidence to be credible in that regard.  The tribunal noted, further, the evidence from George Hillock that this was one of the hardest things that he had ever had to do.  The tribunal does not conclude that this display of discomfort gives rise to the inevitable conclusion that the process was, or must have been, unfair and discriminatory and thus the tribunal does not accept the claimant’s submission in that regard.

 

5.38    At this second meeting the claimant was afforded a full and fair opportunity to make comment on things.  She was represented by a fellow employee, Jane Healey, who as mentioned took her own notes.  A transcript of these latter notes was inspected by the tribunal.  The claimant was, in accordance with this process, afforded the opportunity to raise various issues at this second meeting, including the bypassing and work referral issues and the claimant’s perception that, as a female, she was not regarded in the same favourable fashion as were the male employees.  The claimant made clear that she felt that the scoring of Eamonn McCarthy was unfair.  However, she indicated that she felt that George Hillock had scored her very fairly and that she agreed with almost everything that George Hillock had said.  At the conclusion of the meeting certain words were spoken by Eamonn McCarthy.  These words were subject to a considerable degree of scrutiny in the course of the tribunal hearing.  The respondent’s typewritten note of the pertinent words reads as follows:-

 

                        “E McC – Jacqui if you are unhappy with the scoring particularly mine please by all means look at challenging the decision, I would be happy if you appealed and you know you are well within your rights to do so”.

 

            These words were construed on behalf of the claimant, in submissions, as encompassing the suggestion that Eamonn McCarthy effectively wished to “wash his hands” of the matter, thereby suggesting that the decision to make the claimant redundant had already been taken at this point and by the conclusion of this meeting.  Eamonn McCarthy in his evidence denied using any manner of expression that he wished to “wash his hands” of the matter.  The tribunal examined the oral evidence and also any written material which might bear upon what had actually occurred and what words had been spoken at this concluding part of the meeting.  The pertinent part of the respondent’s written record in the note of the meeting reads as above.  Another contemporaneous note exists, being that made by Jane Healey.  The pertinent part of Jane Healey’s note reads:-  “Right to appeal. After a final decision”.  Noting the totality of the evidence, the tribunal’s conclusion does not support the claimant's contention that a final decision had been made at this point.  The respondent’s typewritten note of the recorded words certainly bears a degree of ambiguity.  That was accounted for in his oral evidence by Eamonn McCarthy as meaning that he had indicated at the time that the claimant was quite entitled to challenge his scoring in the process and any decision that was yet to be made as a result.  This, taken together with such evidence as is contained in Jane Healey's note and the reference to “After [the tribunal’s emphasis] a final decision”, leads the tribunal to conclude that no final decision had indeed been made at that stage, notwithstanding the claimant's strenuous contention to that effect.  In regard to the forgoing issue, it is to be noted that the policy clearly provides that no decision ought to have been made at this stage of things and the tribunal is accordingly satisfied, on balance, that no concluded decision had been made at this point in matters and thus that there was no breach of the stated policy on that account.

 

The Involvement of the HR Department

 

5.39    The claimant also sought to challenge the respondent on the basis of what she asserted to be another breach of policy.  It was asserted that the requisite documentation had not been passed to the respondent's HR Department as was required by the procedure.  The argument was made that the tribunal should draw an adverse conclusion from the respondent's failure to call a witness from the respondent's HR Department to prove any interaction between local management and the HR Department.  In response to this, the respondent's representative made the point that nothing in the preparation for the case had indicated to the respondent that this evidence would be challenged.  Accordingly no witness was sought to be produced.  The tribunal’s attention was nonetheless drawn to a fax number clearly evident on one of the documents (the notes of the meeting of 29 November 2012) indicating that that document had been sent by fax transmission to the HR Department. This, taken together with the evidence of George Hillock, leads the tribunal to conclude, on balance, that any requisite documents were indeed sent to the HR Department as required by the process.  The point was made in argument for the respondent, in the context of the evidence from George Hillock, that it would have been entirely illogical for the respondent's local management to have sent just one document to the HR Department when there was designated redundancy process which included the proper involvement of the respondent’s HR Department.  Further, Eamonn McCarthy’s evidence was that the HR Department for example had typed up the notes required for the meeting held on 29 November 2012.  On the balance of the evidence, the tribunal concludes that the respondent's HR Department was appropriately involved in advising local management and in advancing the redundancy process in accordance with the established procedure and that the requisite documentation, including assessments sheets and notes of meetings, was passed to the respondent’s HR Department as was required by the procedure.

 

The Scoring Outcome

 

5.40    The ultimate decision was then taken that the claimant should be made redundant in view of her having scored the least number of points in the scoring system.  In this exercise for "Competency" there was a maximum of 20 points available per assessor; for "Adaptability" there was a maximum of 20 points per assessor and for "Performance" there was a maximum of 20 points available per assessor.  The claimant's score in respect of the specific categories of assessment was as follows:  "Attendance" (one score) - 16 points; “Service” (one score) - 5 points; "Competency" (two assessors) - 12/12 points respectively from George Hillock and Eamonn McCarthy; "Adaptability" (two assessors) - 12/12 points respectively from George Hillock and Eamonn McCarthy; "Performance" (two assessors) - 12/13 points respectively from George Hillock and Eamonn McCarthy; and “Disciplinary” – 0 points (which latter was the score applied to all persons).  The claimant's total score, accordingly, was a figure of 57 points from George Hillock and 58 Points from Eamonn McCarthy.  The other total scores were, in order of merit:  Walsh, 71 points from George Hillock and 75 Points from Eamonn McCarthy, Smith, 70 points from George Hillock and 73 Points from Eamonn McCarthy, Barnes, 69 points from George Hillock and 69 Points from Eamonn McCarthy and Watson, 62 points from George Hillock and 63 Points from Eamonn McCarthy. 

 

The Stage 4 Meeting - 21 December 2012

 

5.41    A further meeting then took place with the claimant, as was required by the process.  This meeting was held on 21 December 2012 and George Hillock at this meeting informed the claimant, who attended with her representative, Jane Healey, that her position of employment had been made redundant and that consequently the employment was to be terminated, with immediate effect.  The meeting was brief.  This brevity was criticised by the claimant.  Nonetheless the tribunal notes that the specified procedure suggests that things ought to be kept as brief and as much to the point as possible, whilst nonetheless according appropriate sympathy and understanding to any employee who is about to be dismissed on grounds of redundancy.  Nothing turns upon this.

 

5.42    Notwithstanding the claimant being verbally informed of the outcome of the meeting, there was intended to be a letter written to the claimant confirming the outcome in writing.  That letter was substantially delayed and indeed was not sent to the claimant until 25 February 2013.  In submissions on behalf of the claimant, that substantial delay was heavily criticised and it was contended that this was yet a further illustration of the claimant being “invisible” as far as the respondent was concerned.  Having heard the evidence, the failure to send the letter in a timely fashion was nothing other than a simple administrative error, in the view of the tribunal, and is not evidence of any specific adverse or inappropriate approach taken towards the claimant on the part of the respondent.  The tribunal acknowledges that administrative errors like this can and do occur.  The tribunal declines to draw any specific adverse inference from the fact of this mistake having occurred.

 

The Appeal Process

 

5.43    The process permitted an appeal against the decision to dismiss the claimant on grounds of redundancy and the claimant, by letter dated 2 January 2013, wrote requesting an appeal.  The appeal was held on 1 February 2013 and present at the appeal were Ken Kinkead, the respondent’s Regional Director, Kiera Braniff as note-taker, the claimant and accompanying the claimant a trade union official, Mel Corry of ICTU.  At the appeal hearing the claimant, together with her appointed representative, was enabled to put forward in some detail the various contentions which she wished to make.  These points included the claimant’s contentions that she believed that the redundancy was not genuine; that only four persons ought to have been included in the redundancy pool (i.e. not Jim Watson); that part-time hours had not been properly considered; that the consultation process had been very condensed; that the claimant thought that she was in a protected position and that she could not have been made redundant; that Jim Watson was now doing the claimant’s job; that whilst George Hillock had been fair in the process, Eamonn McCarthy had felt uncomfortable with the whole process; that no confirmation letter of the outcome had been sent; and that the odds had been stacked against the claimant from day one. In conducting the appeal meeting, Ken Kinkead afforded a full and proper opportunity for the claimant and her representative to make any points and to raise any issues which they desired and he undertook to investigate certain matters that had been raised.  After this meeting concluded, Ken Kinkead met with George Hillock, Eamonn McCarthy, and also with Jim Watson, Ryan Smith, Conor Barnes and John Walsh, to follow up on issues raised and further to investigate these.

 

The Appeal Process Outcome Confirmation

 

5.44    By letter dated 22 February 2013 Ken Kinkead wrote to the claimant and set forth in some detail the respondent’s response to the various issues that had been raised by the claimant in the course of the appeal.  These included, under separate headings, how the appeal addressed and had determined the respondent’s various contentions.

 

5.45    Taking these contentions in turn and Ken Kincaid’s written response to the points raised by the claimant: -

 

(1)          That there was not a genuine redundancy: Ken Kinkead explained the reason for the redundancy and the necessity to reduce costs and that all five persons in the selection process were all employed as showroom sales advisers;

 

(2)          That there had been no meaningful consultation or that issues had been ignored: Ken Kinkead stated that he had separately met with George Hillock and Eamonn McCarthy and that both had confirmed that the issue of
part-time hours, and the role of a particular employee who had left, and any effect on the claimant’s maternity pay, had been considered and discussed with the claimant.  The issue of part-time hours had been determined as not feasible.  Other vacancies had been considered but there were no alternative roles available in Northern Ireland.  He confirmed that the claimant was not interested in jobs outside Northern Ireland and that the claimant had had three consultation meetings following the initial announcement over a period of 30 days, which was felt to be reasonable and fair;

 

(3)          That the claimant had been singled out at the initial announcement:  Ken Kinkead stated that the three showroom sales advisers present on 20 November 2012, Smith, Walsh and Watson, had met with George Hillock and a voluntary redundancy form had been given to these persons present at the time.  George Hillock then, on advice from HR, had telephoned the claimant and had made the same announcement by telephone and had arranged to meet with the claimant the following day regarding the voluntary redundancy.  The fifth person, Conor Barnes, had been off work and he was spoken to individually on the following day, when the same announcement was made to him.  Accordingly Ken Kinkead did not believe that the claimant had been singled out during the initial redundancy process;

 

(4)          That there had been an unfair scoring:  Ken Kinkead stated that, having spoken with Eamonn McCarthy, he had confirmed that Eamon McCarthy had told the claimant that if she was not happy with the scoring she could look into challenging the decision as she was within her rights to do so.  Ken Kinkead observed that the claimant had failed to advise him, or George Hillock and Eamonn McCarthy, specifically why she believed the scoring was unfair and that, after reviewing the scores and speaking with both George Hillock and Eamonn McCarthy, Ken Kinkead believed that the scoring was fair and accurate;

 

(5)          That there was no dismissal letter:  Ken Kinkead explained that the employment termination letter might not have been sent out due to an administrative oversight and he attached a copy of the letter which ought to have been dispatched and he further observed that George Hillock did confirm that he had told the claimant in the final meeting held on 21 December 2012 that she had been made redundant.

 

            This explanation afforded on the part of Ken Kincaid confirming reasons for the appeal outcome, in this letter to the claimant, accordingly concluded the redundancy process.

 

 

THE APPLICABLE LAW

 

6.         The following list of authorities was cited in submissions: -

 

Anya  v  University of Oxford and another [2001] IRLR 377

 

Lynch  v  Ministry of Defence [1983] NI 216

 

Kuzel  v  Roche Products Ltd [2008] IRLR 530

 

Williams and Others  v  Compair Maxam Ltd [1982] IRLR 83

 

Robinson  v  Carrickfergus Borough Council [1983] IRLR 122

 

Capita Hartshead Ltd  v  Byard [2012] IRLR 814

 

Webb  -v-  EMO Air Cargo (UK) Ltd [1995] IRLR 645

 

Hair Division Ltd  -v-  Macmillan  [2012] UKEAT 0033_12_1210

 

O'Neill  v  (1) Governors of St Thomas More RCVA Upper School  (2) Bedfordshire County Council [1996] IRLR 372

 

Amnesty International  v  Ahmed [2009] IRLR 884

 

Pickard  v  The BSS Group plc t/a Buck & Hickman (ET/1310103/09)

 

These authorities were considered by the tribunal in reaching a determination in the case.

 

The Sex Discrimination (Northern Ireland) Order 1976 (“the 1976 Order”), Article 3, provides as follows:-

 

“(2)      In any circumstances relevant for the purposes of a provision to which this paragraph 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 8 (2) of the 1976 Order provides as follows:-

 

“(2)      It is unlawful for a person, in the case of a woman employed by him at an   establishment in Northern Ireland, to discriminate against her –

 

            (a)       in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

 

            (b)       by dismissing her, or subjecting her to any other detriment.”

 

Article 5A of the 1976 Order, as amended by the Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2008, provides as follows:-

 

“(1)      In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if –

 

            (a)       at a time in a protected period, and on the ground of the woman’s pregnancy, the person treats her less favourably, or

 

            (b)       on the ground that the woman is exercising or seeking to exercise, or has exercised or sought to exercise, a statutory right to maternity leave, the person treats her less favourably.”

 

 

            Burden of Proof

 

            Article 63 A of the 1976 Order states:-

 

“(2)      Where, on the hearing of the complaint, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that respondent –

 

            (a)       has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III or

 

            (b)       is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination or harassment against the complainant, the Tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, he is not to be treated as having committed that act.”

 

            The Court of Appeal in England and Wales in Igen  v  Wong [2005] IRLR 258 considered the equivalent provisions to the Northern Ireland statutory provisions in a sex discrimination case and approved, with minor amendment, the guidelines set out in Barton  v  Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332.  The Northern Ireland Court of Appeal has given approval to Igen v Wong and the two-stage process, inter alia, in the case of Bridget McDonagh & Others  v  Samuel Thom t/a The Royal Hotel Dungannon [2007] NICA 3.  There, the Court of Appeal, in reference to this two-stage process stated:-

 

                        “The first stage required 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 against the complainant. The second stage, (which only came into effect if the complainant had proved those facts) required the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld”

 

            Igen  v  Wong has been the subject of a number of further decisions, including Madarassy  v  Nomura International Plc [2007] IRLR 246, a decision of the Court of Appeal in England and Wales, and Laing  v  Manchester City Council [2006] IRLR 748, both expressly approved by the Northern Ireland Court of Appeal in Arthur  v  Northern Ireland Housing Executive and SHL (UK) Ltd [2007] NICA 25.

 

            In Madarassy, part of the judgement of the Court of Appeal, per Mummery LJ reads (at paragraphs 56[1], 57, 71 and 72) as follows:-

 

“56.     The court in Igen  v  Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent "could have" committed an unlawful act of discrimination.  The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.  They are not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.

 

57.       "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 complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent contesting the complaint.  Subject only to the statutory "absence of an adequate explanation" at this stage…. the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required ……. and available evidence of the reasons for the differential treatment.

 

71.       Section 63A(2) does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant's evidence of discrimination.  The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy.

 

72.       Such evidence from the respondent could, if accepted by the tribunal, be relevant as showing that, contrary to the complainant's allegations of discrimination, there is nothing in the evidence from which the tribunal could properly infer a prima facie case of discrimination on the proscribed ground.  As Elias J observed in Laing (at paragraph 64), it would be absurd if the burden of proof moved to the respondent to provide an adequate explanation for treatment which, on the tribunal's assessment of the evidence, had not taken place at all”.

 

            Accordingly, matters normally involve a two-stage analysis of the evidence but this does not prevent the tribunal at the first stage from drawing inferences from evidence adduced by the respondent disputing and rebutting the claimant’s evidence of discrimination.  It is not necessary in every case for the tribunal to go through the two-stage procedure.  In some cases it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen  v  Wong test.

 

            It is important to note that the explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably. Unreasonable treatment might be evidence of discrimination such as, if applicable, to engage stage two in Igen v Wong.  The mere fact that the claimant might have been treated unreasonably however does not of itself suffice to justify an inference of unlawful discrimination to satisfy stage one; per Lord Browne-Wilkinson in Zafar  v  Glasgow City Council [1997] IRLR 229:-

 

                        ‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.’

 

            Any inference is then drawn not from the unreasonable treatment of itself but rather from the failure to provide a non-discriminatory reason for it.  If the employer does properly demonstrate that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.

 

            In regard to the claims of unfair dismissal, the Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as “the 1996 Order”) provides at Article 126 that an employee has the right not to be unfairly dismissed by his employer.  Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer.  It is for the employer under the provisions of Article 130 (1) (a) to show the reason (or, if more than one, the principal reason) for the dismissal, and, under Article 130 (1) (b), that it is either a specified reason as set out in Article 130 (2) or some other substantial reason of a kind such as to justify the dismissal. The specified (potentially fair) reasons for dismissal that are set out in Article 130 (2) include redundancy.

 

            In relation to redundancy, circumstances in which an employee who is dismissed shall be taken to be dismissed by reason of redundancy are set forth in Article 174 of the 1996 Order.  This provides as follows:-

 

                        “For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to (a) the fact that his employer has ceased or intends to cease (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business — (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.”

 

            In respect of fair and proper redundancy procedure, Browne-Wilkinson J. in the case of Williams  v  Compair Maxam Ltd [1982] IRLR 83 provided what has been for some considerable time the generally accepted view that a reasonable employer will seek to act in a manner which includes the following principles, which are not principles of law, but standards of behaviour:-

 

            1.         The employer will seek to give as much warning as possible of impending redundancies so as to enable employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, to find alternative employment in the undertaking or elsewhere.

 

            2.         The employer will consult as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible.

 

            3.         The employer will seek to ensure that the selection is made fairly in accordance with criteria and will consider any representations the union [or the employee] may make as to such selection.

 

            4.         The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.

 

            In all cases the tribunal must be satisfied that the employer acted reasonably and that applies to an employer’s choice of the pool of employees from which any redundancy is to be made.  That decision is to be judged objectively from the standpoint of a reasonable employer and must be within the range of reasonable responses. Good industrial relations practice does not prohibit the inclusion within a redundancy pool of persons who are not performing the same job function; there is no specific requirement that that be the case.  The EAT in the case of Capita Hartshead Ltd –v- Byard UKEAT/0445/11/RN (per Silber J) referred the judgment of Mummery J in the case of Taymech v Ryan [1994] EAT/663/94:

 

                        “There is no legal requirement that a pool should be limited to employees doing the same or similar work.  The question of how the pool should be defined is primarily a matter for the employer to determine.  It would be difficult for the employee to challenge it where the employer has genuinely applied his mind [to] the problem”.

 

            However, the EAT in Capita Hartshead held that the tribunal was not precluded from holding that a decision by an employer for inclusion within the redundancy pool was flawed or that the employer had not genuinely applied his mind to the problem.

 

            If it is determined that the selection of the pool is reasonable, the tribunal is then entitled to consider the selection criteria applied by the employer to the employees within that pool.  In terms of the selection criteria for redundancy, it is not the case that adoption of criteria which involve a measure of subjectivity shall necessarily render a dismissal unfair.  A number of criteria are regularly accepted as being reasonable, capability and performance for instance, which shall inevitably require a measure of subjective assessment.  However, in Williams v Compair Maxam the EAT was quick to point out that the adoption of entirely subjective and unreasonable criteria could well result in a dismissal being rendered unfair.  Provided that the selection criteria were not unfair and appeared to have been reasonably applied, a tribunal should not subject them or their application to over-minute scrutiny.  Accordingly, the tribunal has to be guarded against too detailed a scrutiny of the selection process, for it runs the risk of substitution of its own view for that of the employer (see Charles Scott & Partners Consulting Engineers Ltd v Hamilton UKEAT 0072/10).  The Court of Appeal in British Aerospace v Green and Others [1995] IRLR 433 held that the tribunal should limit itself to satisfying itself that the method of selection was not inherently unfair and that it had been applied in a reasonable way (per Waite LJ, “… it is sufficient for the employer to show that he had set up a good system of selection, that it was fairly administered and that ordinarily there was no need for the employer to justify all of the assessments on which the selection for redundancy was based”). In determining the question of reasonableness, it was not for the tribunal to impose its standards and decide whether the employer should have behaved differently. Instead it had to ask whether the dismissal based upon the method employed lay within the range of conduct which a reasonable employer could have adopted.  A similar approach was followed in King and Others v Eaton Ltd [1996] IRLR CS. The absence of evidence to support scoring, particularly in the context of other potential factors detracting from objectivity, such as evidence of an unexpectedly low mark, perhaps evidence of personal animosity or other intrusive issues, may lead to a conclusion of unfairness (see Ian Arthur Grant v BSS Group Plc UKEAT/0832/02).  The proper approach appears to be that a tribunal is entitled to examine the marking to the extent that such examination might disclose a selection process which was inherently unfair or which was not applied in a reasonable way.  In all cases the tribunal must be satisfied that the employer acted reasonably and indeed that applies to an employer’s choice of the pool of employees from which any redundancy is to be made, to the selection criteria adopted, and to the application of these criteria.

 

            Article 131 of the 1996 Order provides that an employee who is dismissed shall be regarded as unfairly dismissed, in accordance with the provisions mentioned above, in reference to the Maternity and Parental Leave etc.  Regulations (Northern Ireland) 1999, as amended.

 

 

THE TRIBUNAL’S DETERMINATION

 

7.         Firstly, the tribunal wishes to address the claimant's contention that she was automatically unfairly dismissed for a reason relating to her maternity leave, contrary to Article 131 of the Employment Rights (Northern Ireland) Order 1996, this reason being asserted to be the principal reason for the decision to terminate the claimant's employment on grounds of redundancy. It is not necessary to prove that this constituted the principal reason, but it is necessary for the claimant to establish that this was a reason for the dismissal.  For the claimant, it was asserted that this was the main reason.  The respondent strenuously contested this assertion.  Redundancy, as mentioned, is a permissible reason for dismissal provided that it is conducted in a non-discriminatory manner and that was the reason put forward by the respondent.

 

The Issue of “Historical Incidents of Sex Discrimination” and any Permissible Inferences

 

8.         The tribunal was invited to examine in some detail a considerable amount of evidence concerning what were asserted to be “historical incidents of sex discrimination”, it being clarified on behalf of the claimant that any such were not contended to be primary evidence or contentions relating to specific claims of direct sex discrimination but rather matters from which the tribunal was invited to draw specific inferences.  It was accordingly argued that these were matters of context from which the tribunal was invited to draw conclusions or indicators assisting in the potential drawing of adverse inferences in support of the claimant’s primary allegations of unlawful discrimination (in that regard the tribunal was referred to Anya v University of Oxford).

 

9.         The detail of these matters and issues is set out earlier in this decision but, in summary, the tribunal's conclusion in regard these matters was as follows:-

 

            In regard to the “Casino Night” and the issue of management arranging for the hire of “tuxedos” on behalf of the male showroom staff and the claimant’s assertion that no such equivalent provision had been made for her, the tribunal declines to draw any inference adverse to the respondent from this for the reason that the conduct of management in the matter appeared at the time to be quite acceptable to the claimant and she made no issue of things and also that management had arranged an accommodation for the claimant to attend a hairdresser prior to the event.

 

            In regard to the issue of there existing in respondent's Belfast branch a prevailing “culture” where crude and sexually explicit language or references might be made by various members of the workforce in the showroom sales area, the tribunal declines to draw any inference adverse to the respondent from this.  That is so for the reason that the claimant personally engaged in this type of activity and “ banter” willingly and did not engage in this under any duress.  Indeed, she was at times the instigator of this activity.  As one (fully credible) witness put it, the culture was both “laddish” and “girlish”.  Nothing adverse turns upon that.

 

            In regard to the issue of the claimant being “bypassed” regarding the allocation of sales and that such sales had been specifically directed to the (male) employees, John Walsh and Ryan Smith, the tribunal declined to make any specific findings that anyone else, to any material extent, directed such sales, effectively bypassing the claimant, other than Eamonn McCarthy, against whom the claimant directed her primary focus in regard to this contention.  The tribunal noted that Eamonn McCarthy did concede that he referred such sales to John Walsh and to Ryan Smith. Conor Barnes, in common with the claimant, was not referred sales.  The explanation provided by Eamonn McCarthy is connected with factors identified such as length of service and superior sales knowledge.  The disadvantage of any non-referral on the part of Eamonn McCarthy was shared between a male, Barnes, and a female, the claimant.  Accordingly the tribunal did not determine that the claimant's perception of being “bypassed” had anything to do with gender, for the reason that a male employee was equally disadvantaged and that a rational and non-discriminatory reason was provided for these referrals.  Accordingly, the tribunal declines to draw any inference adverse to the respondent from this.

 

            In regard to the issue of the claimant suffering from “morning sickness” and certain alleged conduct towards her in the workplace, the claimant contended that George Hillock was extremely unsympathetic to her when she became unwell and was dismissive in his remarks. George Hillock strenuously denied these suggestions.  The claimant, otherwise, appeared to have had quite a positive and good working relationship with George Hillock at all times and he had been generally supportive to her in the workplace.  The tribunal accepted the evidence of George Hillock.  The claimant also contended that the other showroom sales advisors made light or made fun of her condition and her “morning sickness”.  Examining matters, there is no compelling evidence that any persons in the workplace behaved inappropriately or were unduly unsympathetic or harsh towards the claimant in regard to her condition or pointedly displayed an unsympathetic, dismissive, or hostile attitude towards the claimant on account of her pregnancy, maternity or her gender.  The tribunal does not find in favour of the claimant in regard to these contentions.

 

General Inferences or Findings Supporting Unfair Dismissal for a Reason Relating to Maternity Leave, Contrary to Article 131 of the Employment Rights (Northern Ireland) Order 1996  

 

10.       One of the themes in the matter was the claimant's contention that she was treated differently to the male members of staff, for example, in the way in which she was dealt with at the time the redundancies were first mooted.  It is true that she was absent on maternity leave and she was contacted in a different way to three of the other showroom sales advisors who were present at work on that day, 20 November 2012.  It was arranged that the claimant would attend the work premises the following day and she was provided with the same information as the other persons, including an invitation concerning voluntary redundancies.  There was some evidence that the other showroom sales advisors were requested to sign an “at risk” register but that this was omitted as far as the claimant was concerned and also that the claimant was shown details of the redundancy scheme on a computer screen only.  Conor Barnes was also dealt with in a different manner to the other three, as he was absent on leave at the time.  If there were any differences in treatment, these were not so material as to permit any adverse inference to be drawn.  Here the tribunal is required to determine if any instances, either individually or collectively, amounted to such significant or remarkable a difference in treatment of the claimant, in comparison to the others, that the tribunal might on account of this be entitled to draw adverse inferences in support of the claimant's contentions.  Noting these matters, the tribunal’s conclusion is that any differences in treatment such as may have existed are not material; nothing sinister or untoward emerges to support the proposition advanced that the claimant was treated differently on account of her gender or her status as an employee who was on maternity leave, or that inferences in support of this may thereby be deduced.  Accordingly the tribunal declines to draw any inference adverse to the respondent from this.

 

11.       The law as mentioned above is correctly stated on behalf of the claimant in submissions in that an employee is entitled to be regarded as unfairly dismissed if the reason (or the principal reason) for the dismissal is the fact that the employee took, sought to take, or availed herself of the benefits of, ordinary maternity leave.  It has been contended on behalf of the claimant that the tribunal ought to arrive at conclusions of fact supporting this proposition.  The employer here has indicated the reason for the claimant’s dismissal; that reason is redundancy.  Redundancy is a potentially fair reason for dismissal, but such a reason must not in any way arise from, or be connected to, the fact of the claimant being absent on maternity leave.  If that were to be so, this would be an effective cause.  It has been asserted that the respondent saw the claimant as being an expensive, but expendable, employee by reason of her being on maternity leave.  It is contended that the dismissal of the claimant by the respondent was the straightforward and easy option, that she was "out of sight and out of mind" on account of her being absent on maternity leave. In the event, the tribunal having examined the relevant evidence is unable to draw adverse inferences in regard to the alleged context of “historical incidents” or other matters from which such adverse inferences were invited to be drawn (for example the delay in the letter notifying the claimant of the outcome), notwithstanding the robust invitation extended to the tribunal on behalf of the claimant to do so.

 

12.       The tribunal accordingly examined the primary facts concerning the redundancy exercise to enable a determination to be made as to whether there is any evidence that the claimant's absence on maternity leave played a part in the course of events, out of which the dismissal occurred, whether it “was a reason” for the dismissal.

 

13.       The claimant's contention was that she should not been included at all in the selection pool for redundancy.  She asserted that this was done to protect Jim Watson whose post was, in truth, redundant.  She contended that Jim Watson ought to have been dismissed as redundant rather than his being included in the pool of persons out of which the claimant was ultimately selected for redundancy.  Firstly, the tribunal found no persuasive evidence that Jim Watson's post, of itself, was redundant.  The argument advanced on behalf of the claimant was that, because Jim Watson conducted primarily a support and administrative function on behalf of the showroom sales team, in some manner the reduction in sales and the need to make redundancies made his specific function, of itself, redundant.  There was no evidential basis for that contention and consequently the tribunal did not accept this submission.  Furthermore, the tribunal's finding is that the respondent's decision to identify the pool of five employees for inclusion, upon the basis in which this was done (in the context of the prescribed procedures and advice to local management from the respondent’s HR Department), was a rational one.  There was nothing in the decision-making in that regard which leads the tribunal to conclude that it had any connection with the claimant's absence on maternity leave.

 

14.       The claimant sought to challenge the selection criteria.  These criteria were noted by the tribunal and, as is mentioned above, both subjective and objective criteria were included (not purely subjective criteria as was contended on behalf of the claimant).  The tribunal is entitled to examine, to the extent to which it is permissible to do so, the identification of these criteria and especially so the subjective elements to these (for that is where any challenge might lie).  The authorities mentioned above provide that it is easier to sustain a challenge where there is an entirely unexplained disparity in the application of criteria as between one person and another.  This is so especially where the application and any consequent scoring or assessment appears to depart from what might have been otherwise expected.  As mentioned, for the purposes of examination of any potentially discriminatory conduct, the tribunal has scrutinised the scoring especially as between the claimant (whose scoring was lowest) and that of the next-ranked candidate, Jim Watson.  In conducting that exercise the tribunal did not discern any evident or striking disparity of treatment such as would lead the tribunal to be concerned that in some way the claimant’s status, as an employee absent on maternity leave, had some influence or bearing upon the scoring as applied.

 

15.       It is not the case (for such a case was not sought to be made by the claimant at any point in these proceedings) that the claimant had been expected to have scored particularly highly in one or more categories of assessment in comparison to any of the other pool members (most particularly Jim Watson) but had unexpectedly failed to do so.  She could not and did not seek to point to any particular skills or qualities which she possessed and which she expected to have been scored very highly, but which were scored unexpectedly poorly. She stated in the course of the meeting held on 6 December 2012 that she felt that George Hillock had scored her very fairly and that she had agreed with almost everything George had said.  She endeavoured to attack the assessment made by Eamonn McCarthy (who had assessed her in a very similar manner to George Hillock) but without providing any specific, detailed, or rational basis for that attack nor for any disparity of view.  The criteria had specifically not included sales performance which might otherwise, if included, have disadvantaged the claimant, being absent as she was on maternity leave.  The tribunal had noted the claimant's evidence-in-chief on the first day of the hearing. In her evidence she specifically maintained that George Hillock had been quite fair with her, but she also stated that George Hillock could have marked her up, as she put it, “by one or two points”.  Thereby, she suggested that George Hillock’s score was not excessively low. George Hillock’s scoring of her came to a total of 57 points. Eamonn McCarthy's score for her totalled 58 points, being thus one point more than George Hillock.  Nonetheless the claimant remained critical of Eamonn McCarthy’s scoring. It therefore appears that the claimant's case before the tribunal was, at its height, that she was underscored by a very small number of points.  The total scoring for the others included within the selection pool exceeded her scores, in some cases, by a considerable margin.  On the claimant's own case, therefore, she did not appear even to be setting forth a sound evidential basis for any strong and clearly-articulated assertion that she should have scored more highly than the next-ranked candidate in the order of merit, Jim Watson.  It must be remembered that Jim Watson had attained respectively 62 (Hillock) and 63 (McCarthy).  The claimant had attained 57 (Hillock) and 58 (McCarthy).  The resultant disparity was 10 points.  The position adopted by the claimant at hearing, based upon her very clear evidence to the tribunal, does not appear to assert that the claimant had been underscored by a figure in excess of this 10-point disparity.

 

16.       Of necessity, therefore, the claimant’s case, as structured and as presented, had to endeavour to challenge the process by a number of different, alternative, routes.  The central issue of whether or not the scoring was manipulated or engineered in such a discriminatory or unfair manner so as to disadvantage the claimant, resulting in her dismissal as being the lowest-ranked in the order of merit, was one where the facts do not support the claimant’s contention.  Her assertion here is unspecific and the evidence does not support her case. Accordingly the tribunal’s unanimous finding is that there was not an unfair dismissal of the claimant by the respondent for a reason relating to be claimant’s maternity leave, contrary to Article 131 of the 1996 Order.

 

Unfair Dismissal Contrary to Article 126 of the Employment Rights (Northern Ireland) Order 1996  

 

17.       Examining then the claimant’s second claim, which is one of “ordinary” unfair dismissal, Article 126 the 1996 Order provides for the right not to be unfairly dismissed and Article 130 provides for the test of fairness concerning dismissal.  The submission made on behalf of the claimant has placed substantial reliance upon what are asserted to be inherently subjective criteria, coupled with stated substantive and procedural failings in the carrying out of the process and it is asserted that the tribunal is entitled to conclude that the claimant was unfairly dismissed on this account.  Here the employer, under Article 130 (1) (a) of the 1996 Order, has demonstrated the reason for the claimant’s dismissal. In accordance with Article 130 (1) (b) this is the specified reason of redundancy, being a permissible reason set out in Article 130 (2).  In submissions made on behalf of the claimant, it has been acknowledged that, absent a claim of pregnancy/maternity discrimination, the assessment of who should be in the pool is a matter for the employer, subject to the range of reasonable responses test.  As in this case the tribunal has determined that the selection of the pool for redundancy was reasonable (in accordance with this test), for the reasons indicated above, the tribunal then has proceeded to consider the selection criteria applied by the respondent.  As is mentioned above, it is not the case that adoption of criteria which involve some measure of subjectivity shall necessarily render a dismissal unfair.  Adoption of such criteria as, for example, capability and performance, shall inevitably require a measure of subjective assessment.  These are not absolutely prohibited by the standards of a fair and reasonable employer.  The EAT in the leading case of Williams v Compair Maxam indicated that the adoption of entirely subjective and unreasonable criteria might result in an unfair dismissal.  However, provided that selection criteria are not inherently unfair and appear reasonably applied, the tribunal should not subject the criteria or their application to over-minute scrutiny nor should the tribunal risk substitution of the tribunal’s own view for that of the employer.  The Court of Appeal in British Aerospace v Green and Others held that the tribunal should limit itself to satisfying itself that the method of selection was not inherently unfair and that it had been applied in a reasonable way.  In determining reasonableness, it is not for the tribunal to impose its own standards nor to decide how the tribunal itself would have conducted the redundancy exercise.  The tribunal’s task is appropriately to scrutinise the process from an objective standpoint and applying the standards of a reasonable employer.  Accordingly, the tribunal asks itself whether the dismissal, based upon the method employed, lies within the range of conduct which a reasonable employer could have adopted.

 

18.       The tribunal notes the absence of evidence to support any unexpectedly low marking.  There is no clear and compelling evidence, for example, of any personal animosity displayed by management towards the claimant, such as may perhaps be found in cases where results are manipulated so as to disadvantage an employee in a redundancy exercise whom management wish to have dismissed.  There is no compelling evidence of other intrusive issues otherwise detracting from the fairness and objectivity of approach brought to bear in the conduct of this redundancy exercise.  The tribunal does not find any clear evidence of procedural unfairness such as has been contended in this case.  There was a staged and appropriate process of consultation which was substantially in accordance with the prescribed procedures and also, in the determination of the tribunal, was in compliance with the general standards of fair and proper procedure (see again Williams v Compair Maxam Ltd).  The respondent did seek to inform the claimant at the material time of other vacancies existing in Great Britain (as there were none in Northern Ireland at that time), but these were deemed not be suitable by the claimant herself. The other alternative, of part-time working, was deemed not to be feasible and the claimant was made aware of that.  Accordingly, upon the facts of the matter, the tribunal is satisfied that the respondent acted reasonably, both procedurally and substantively.  This assessment applies not only to the respondent’s choice of the pool of employees from which any redundancy was to be made, but also applies to the selection criteria adopted and to the application of these criteria in the exercise that was conducted.  The tribunal accordingly does not find that the process was procedurally unfair.  Further, there was a sound and substantive basis for the selection of the claimant for redundancy; she was the lowest-scored of the five candidates included within the pool for selection for redundancy.  It is not for the tribunal to conduct its own re-selection process, nor any impermissible
re-assessment exercise.  Accordingly, in the determination of the tribunal, the dismissal of the claimant by the respondent for the reason stated, redundancy, fell within the band of reasonable responses of a reasonable employer.  The claimant was not unfairly dismissed.  In consequence of this, the tribunal’s unanimous finding is that there was not an unfair dismissal of the claimant by the respondent in contravention of Article 126 the 1996 Order.

 

Direct Pregnancy-related Discrimination  

 

19.       Turning, finally, to an examination of the claimant’s third claim, which is one of direct pregnancy-related discrimination, it is correctly stated in the claimant’s submissions that no comparators are required (see Webb -v- EMO Air Cargo (UK) Ltd (No 2) [1995] ICR 1021 UKHL).  The tribunal is tasked with establishing the reason why such treatment was accorded to the claimant that resulted in her dismissal and whether or not her pregnancy was an effective cause.  In the conducting this task the tribunal is entitled to examine the evidence and consequent material findings of fact in order to ascertain, from an examination of the actions of the respondent and any surrounding circumstances, if such conduct and actions of the employer included, as a reason, the claimant’s pregnancy. The enquiry must accordingly be made into the reason for the alleged discriminator’s action, not the motive (which may be benign or otherwise) (in that regard see Amnesty International v Ahmed [2009] IRLR 884 EAT).  In conducting this task, the tribunal reiterates the findings of fact mentioned above in connection with the claimant’s claim of automatic unfair dismissal for a reason relating to the claimant’s maternity leave, contrary to Article 131 of the 1996 Order.  These parallel findings of fact are made in respect of this specific claim of direct pregnancy-related discrimination. The tribunal, in regard to this specific contention, was unable to find sufficient material in the alleged matters of context (the “historical incidents of sex discrimination” and other issues alluded to in the claimant’s case) from which the tribunal was properly able to draw adverse inferences against the respondent in support of the claimant’s allegation of direct pregnancy-related discrimination.  Examining all of the evidence, the tribunal in this matter has been provided by the respondent with an explanation in which such unlawful discrimination is stated to have played no part.  The claimant’s assertion, in opposition to this, was that, upon the basis of the evidence, the principal reason why the respondent acted as it did in first selecting and then in dismissing the claimant for redundancy was that of pregnancy-related discrimination.  It was asserted that the respondent regarded the claimant as an expensive but expendable employee, by reason of her being pregnant and on maternity leave; she was, as it was contended, “out of sight and out of mind”.  The two-stage analysis of the evidence in matters of unlawful discrimination does not prevent the tribunal at the first stage from drawing inferences from evidence adduced by the respondent disputing and rebutting the claimant’s evidence of discrimination.  It is not necessary in every case for the tribunal to go through the two-stage procedure.

 

20.       The tribunal reminds itself of the judgement of the Northern Ireland Court of Appeal, per Lord Justice Girvan, in Nelson v Newry and Mourne District Council [2009] NICA 24.  There, referring to Madarassy v Nomura International Plc, Lord Justice Girvan (at paragraph 24) states:-

 

                        “This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude in the absence of adequate explanation that the respondent has committed an act of discrimination.  In Curley v Chief Constable [2009] NICA 8 Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination.  The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A.  The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination”.

 

21.       As mentioned above in connection with Madarassy, it is not necessary in every case for the tribunal to go through the two-stage procedure and thus in some cases it may be appropriate for the tribunal simply to focus on the reason given by the employer and if the tribunal is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen v Wong test.  Examining the explanation afforded by the respondent, this evidence supports a non-discriminatory reason for the treatment accorded to the claimant.

22.       At one of the meetings in the redundancy process, the claimant asserted that it was impossible to make redundant an employee who was on maternity leave, thereby suggested that she was in an especially protected position and, put simply, that she could not be made redundant.  That is not the case; it is not always unfair to dismiss a pregnant woman.  Provided that there is no element of pregnancy-related discrimination, in that the claimant’s pregnancy does not form part of the effective cause of the treatment resulting in the redundancy dismissal, then it is permissible for an employer to act in dismissing an employee who is pregnant, or on maternity leave. In support of the claimant’s case, the claimant’s representative cited the case of Pickard v The BSS Group plc t/a Buck & Hickman (ET/1310103/09).  The tribunal noted the facts of that case, but found the matter to be distinguishable from the instant case.  In Pickard the Employment Tribunal’s finding was that the dismissal of the claimant in that case was an “easy option” as the claimant was an experienced and relatively expensive employee and her duties had already been redistributed amongst members of the finance team whose work had been reduced due to the implementation of a particular management system.  If the claimant had remained at work, her duties would not have been dispersed around other employees and, upon the specific facts of that case, the apparently easy solution, in the determination of the Employment Tribunal hearing that case, was to make the claimant redundant.  Accordingly, the conclusion of the Employment Tribunal was that the claimant’s absence on maternity leave did have a significant bearing upon the decision to select that the claimant for redundancy.  The case of Pickard is
fact-sensitive and was not found to be particularly of assistance to the tribunal in the instant matter.  Examining all of the facts and circumstances, the unanimous determination of the tribunal is that the respondent has demonstrated a proper and a non-discriminatory reason for the treatment of the claimant.  The tribunal has accordingly established the reason why the treatment was accorded to the claimant that resulted in her dismissal.  The tribunal’s determination is that the claimant’s pregnancy was not an effective cause of the treatment accorded.  Because of this determination the tribunal’s unanimous finding is that there was not direct pregnancy-related discrimination in the matter.

 

23.       This therefore disposes of the three separate elements constituting the claimant’s case and the case is dismissed by the tribunal in its entirety, without further order

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:    30 September, 1 October and 2 October 2013, Belfast.

 

Date decision recorded in register and issued to parties: