Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1876/15

 

 

 

CLAIMANT: Beverley Carlyle

 

 

RESPONDENT: Dr Clare McGowan

 

 

 

DECISION

The decision of the tribunal is that the claim of unlawful sex discrimination is dismissed and the claimant is awarded £918.00 in respect of a statutory redundancy payment, £1,462.72 in respect of unpaid notice pay and £731.30 in respect of holiday pay, totalling  £3,112.02.

 

Constitution of Tribunal:

Vice President (sitting alone): Mr N Kelly

Appearances:

The claimant appeared in person and was not represented.

The respondent had not entered a response and did not appear.

 

1. The claimant was a practice manager in a small dental practice owned by the respondent. The respondent was the only dentist in the practice. She also employed two dental nurses/receptionists.

 

2. The claimant stated in her claim form that she started work for the respondent on 1 July 2013. When I raised the issue of a minimum of two years' continuous service being necessary before an entitlement to statutory redundancy pay could be established, the claimant checked the claim form and confirmed that 1 July 2013 was correct. She subsequently stated that this had been a mistake and she had in fact started working for the respondent in 2012 and not 2013. No documentary evidence was produced to support this new claim. However, on the balance of probabilities, after considering her oral evidence, I accept that it had been a mistake and that the claimant has established two years' continuous service.

 

3. The claimant was on maternity leave from May 2014 to 16 May 2015.

 

4. On 14 April 2015, the respondent advised the claimant in writing that there was a need to restrict overheads within the practice and that the hours of the two nurses/ receptionists had already been cut. The respondent was still the only dentist in the practice. She stated that she believed she no longer needed a practice manager in such a practice and that this post could be redundant.

 

5. The claimant was subsequently advised that there was no work for her and no money to pay her in any event. She was not offered and did not perform any work for the respondent from 16 May 2015.

 

6. I therefore conclude that the employment of the claimant effectively terminated on 16 May 2015. It is clear that there was no response thereafter to repeated requests for work and/or pay.

 

7. The claimant stated that there had been an oral contractual arrangement between her and the respondent to the effect that four weeks' notice was required from either party to terminate employment. I accepted that was the case.

 

8. The claimant stated that her annual leave year was the calendar year and that she had taken no leave during the 2015 year. It had accumulated during her absence on maternity leave. Her entitlement was 28 days annually. The claimant described it as four weeks' leave with public/bank holidays.

 

9. The claimant worked a 34 hour week and was paid at the rate of £13.50 per hour gross. Her gross weekly pay was therefore £459.00. Her net pay per month was £1,584.63 which equates to a net weekly pay of £365.68.

 

Decision

 

10. The claimant is entitled to a statutory redundancy pay of two weeks gross pay totalling £918.00. It is clear that this was a redundancy situation.

 

11. The claimant is entitled to four weeks' net weekly pay in respect of notice, totalling £1,462.72. She had a contractual entitlement to four weeks' notice (or pay in lieu of notice) and this was not provided by the respondent.

 

12. The claimant is entitled to holiday pay for the period from 1 January 2015 to 16 May 2015. She took no annual leave during this period. The holiday pay due is calculated as follows:-

 

¹³⁶/ ₃₆₅ x 28 = 10 days entitlement

 

10 X £73.13 (daily net rate) = £731.30

 

13. The claimant was unable to provide any evidence of unlawful sex discrimination in this matter. She stated that it was her belief that if she had not been off on maternity leave she would not have been made redundant. However, it seems clear from the facts of this case that this was a very small dental practice facing financial difficulties and that hours had already been cut for the two other employees. It does not seem unreasonable for the respondent to have concluded, as she apparently did, that the post of practice manager was redundant in such a small practice and that given the financial situation the claimant's employment could not be continued. The claimant confirmed that everybody else employed in this practice was female and there are no grounds on which it would be reasonable for a tribunal to infer unlawful sex discrimination in these circumstances. The claim of unlawful sex discrimination is therefore dismissed.

 

14. There was no separate claim for unfair dismissal.

 

15. The total amount payable is £3,112.02.

 

16. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

 

 

 

 

 

 

Vice President

 

 

Date and place of hearing: 2 December 2015, Belfast

 

 

Date decision recorded in register and issued to parties: