Industrial Tribunals Northern Ireland Decisions

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Cite as: [2015] NIIT 131_13IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 131/13

CLAIMANT: Hayley Davina Hylands

RESPONDENT: Catherine Murphy and Shane Murphy, t/a Oaktree

Day Nursery

DECISION

The unanimous decision of the tribunal is that:-

(1) Unfair dismissal.

The claimant was unfairly dismissed because of her pregnancy. For the reasons given at para 43 below, we consider it would be appropriate to reduce the compensatory award to the claimant by 10% for contributory fault and we order the respondent to pay the claimant the sum of £1,260.00.

(2) Sex discrimination.

The claimant was unlawfully discriminated against by the respondent on grounds of her pregnancy, and we order the respondent to pay the claimant the sum of £5,000.00 in respect of injury to feelings, together with the sum of £466.67 in respect of interest.

Constitution of Tribunal:

Employment Judge: Employment Judge McCaffrey

Members: Mr A White

Ms M E Bailey

Appearances:

The claimant appeared in person and represented herself.

The respondent was represented by Mr Shane Murphy.

ISSUES

1. This is a case which had been remitted from the Court of Appeal for re-hearing. The issue for the tribunal to consider was first of all, whether the claimant had been automatically unfairly dismissed on grounds of her pregnancy and secondly, whether she had suffered unlawful sex discrimination on grounds of her pregnancy. Those allegations were disputed by the respondent, who contended that the claimant was dismissed for gross misconduct i.e. leaving a child unattended without supervision. The claimant had been employed by the respondent for just over two weeks at the date of her dismissal and accordingly did not have sufficient service to ground a claim of “ordinary” dismissal.

THE HEARING

2. At the outset of this case, it was noted that the claimant and Mr Murphy for the respondent had each submitted a witness statement. Although Mr Murphy’s witness statement referred to witness statements from other members of staff, there were no other witness statements and the staff concerned were not present to give evidence. When he was asked about this, he indicated that another member of staff, Sarah, who might have given evidence was currently in Australia travelling. Michelle Gordon (who had been the claimant’s manager and had been involved in some of the incidents) was on maternity leave and not available to attend. Mrs Catherine Murphy, the respondent’s wife and fellow respondent in the case, was running the nursery. Due to Michelle Gordon’s absence, Mrs Murphy could not leave the nursery and did not come to tribunal. It was pointed out to Mr Murphy that we could only take very limited account of evidence from witnesses who were not present as their testimony was unsworn, but in any event there were no statements from them produced. It was also pointed out to Mr Murphy that any evidence from him regarding other people’s accounts of various incidents at which he was not in fact present was hearsay evidence and could not be given the same weight as direct evidence from someone present when the events occurred. There was no explanation as to why other staff members named Angela and Sinead were not called to give evidence.

3. It was also pointed out to Mr Murphy that when the dates for hearing of this case had been agreed, he had presumably already known of Michelle’s maternity leave and could have asked for a postponement but had not done so. He agreed that he had known of the maternity leave at that time. He did not make any application for a postponement to arrange for the attendance of other witnesses, although he was given an opportunity to consider this. It was pointed out to Mr Murphy on a number of occasions during the hearing that he could not give evidence of matters where he had not been directly present or involved. In our opinion this situation put the respondent at a considerable disadvantage in relation to the presentation of their case, but it was not for us to direct them or advise them in this regard. We simply observe that the outcome could have well have been different had the respondent called appropriate witnesses to give evidence on their behalf. The failure of the respondent to call these witnesses meant that the claimant had a largely “free run” in relation to her claim.

4. That said, we should also observe that we found that there were incidents where we found the evidence of both the claimant and the respondent Mr Murphy inconsistent and unconvincing, as will appear from the content of this decision. We found that neither party presented as being particularly sympathetic and each of them, at various times during the hearing, made barbed, indeed vindictive, comments about the other. Our summary of the evidence is influenced first of all, by the lack of direct evidence from the respondent and secondly, by the fact that both parties attempted to introduce new (and largely irrelevant) information in cross-examination of the other side and further at submission stage after the evidence had been completed. Indeed, even when the respondent was invited to comment on the claimant’s submissions (because he had not been present at the final submission hearing) he attempted to introduce yet more evidence which had not been adduced before the tribunal. We made it clear to both parties that we could give very limited weight to hearsay evidence or to evidence which was not given under oath, including new information they attempted to adduce at submission stage.

THE FACTS

5. We received witness statements from the claimant and from Mr Shane Murphy on behalf of the respondent. We also heard oral evidence from each of them and a number of documents were opened to us in the course of the hearing. We made it clear to the parties at the outset that unless we were referred to a specific document in the course of the hearing we would not look at documents in the folder. We made it clear we would not read through the entire folder, but only the documents to which we were specifically referred. We were conscious in saying this that the parties had previously been involved in a hearing of this matter before the Industrial Tribunal and so had had the opportunity to observe how matters were dealt at that stage.

6. There was a substantial bundle of documents handed to us at the outset of the hearing but very few of these documents were actually opened to us in the course of the hearing. Again, we observe that had more of these documents been opened to us and evidence given to us in relation to them, the outcome of this case may have been different. A lot of extraneous information was referred to by both parties on the hearing of this matter. In order to try and cut through a lot of this irrelevant material, we set out below only our findings of relevant facts in relation to the issues before us.

7. The claimant was employed as a full-time room leader by the respondent, commencing on 2 October 2012. She had previously worked in childcare for some years and held relevant qualifications, including a Level 3 qualification in Childcare. The respondent runs a nursery and the claimant was caring for toddlers aged 2-3. Mrs Murphy is the senior manager of that nursery and Mr Murphy indicated that he was involved also in the business, but not on a daily basis.

8. On 3 October 2012, the claimant was due to attend a hospital appointment. There was some debate about whether this was an antenatal appointment or whether it was a routine hospital appointment and therefore whether the claimant knew before this date that she was pregnant. The claimant was adamant at the hearing that she had not previously known she was pregnant and the respondent was unable to refute this. In any event, at the appointment the claimant was told that she was expecting twins. As she previously had some health difficulties and had been told it was unlikely she would be able to have children of her own, this came as a considerable surprise. On her return to work, the claimant spoke to Catherine Murphy and Michelle Gordon her manager. She made them aware that because of her medical history, the consultant had indicated that they would like her to attend an antenatal appointment every two weeks. The claimant’s unchallenged evidence was that Catherine Murphy then said to her,

“Hayley, I am going to have to speak to my husband about this, you have only started as a new employee and if we keep you on the kids, they will get used to you and then you will have to go on maternity leave, then we will have to employ someone else and it’s going to knock the kids all out of routine again”.

9. The claimant said that she found this distressing and upsetting. The claimant indicated that Mrs Murphy then said, “Leave it with me, I’ll get back to you and let you know whether we are going to keep you on or not”. It was Mr Murphy’s case that this simply had not happened. He stressed that the business of the respondent was childcare and that in an average year they had a number of staff who were pregnant and off on maternity leave. Indeed he referred to the fact that Michelle Gordon was off on maternity leave at the time of the hearing, although no other evidence was adduced in relation to this or in relation to any other member of staff who was pregnant. While the claimant’s account of this discussion seemed to us to be rather colourful, as she emphasised how much she was crying and shaking at the meeting, we accept that at this meeting Mrs Murphy made the comment about the claimant’s pregnancy and whether or not they would keep her on at work for the following reasons. At the appeal meeting following the claimant’s dismissal, there was a discussion in relation to this particular incident. A recording of the appeal was made by Mr Murphy and was transcribed by the claimant’s solicitor. Mr Murphy relied on this transcript in some detail, and the claimant did not dispute its contents except to say they were incomplete. We therefore have found it helpful to refer to this account as far as the appeal meeting is concerned. The relevant part of the transcript reads as follows:-

“Hayley: On Wednesday 3 October whenever I first told Michelle and Cat that I was pregnant, Cat told me that she would need to speak to you about it ...

Shane: - Pause-Yeaasss.

Hayley: then she came back on the Friday to say yous [sic] were keeping me on.

Shane: yeah. Do you think we shouldn’t have kept you on or ...

Hayley: no I’m not saying that but it was not like as you are saying, like a burden to be pregnant, then why would that have been said then?

Shane: why would we keep on you ...

Hayley: why would Cat have needed to speak to you if it’s not a burden for her, or an employee to be pregnant?

Shane: well I can only tell you what the facts, the ... in the day nursery, it is one of the few jobs where expecting is a benefit so the ... it is something that the day nursery is one of the, it’s the more, well obviously I don’t want call it that expectant ok, but it’s good to have at least one person expecting in the building at any time because parents come and new parents coming in that haven’t any kids can associate with them ...”

10. If this incident had not occurred we would have expected that Mr Murphy or indeed Mrs Murphy (as both were present at the appeal) would immediately have denied the incident at the appeal and said it simply did not happen. That did not occur, in fact the transcript rather indicates that Mr Murphy was agreeing with the claimant when he said “yes”. It is our finding of fact therefore that this exchange between the claimant and Mrs Murphy did take place on 3 October and further that Mrs Murphy then told the claimant on the Friday afternoon following (5 October) that they would keep the claimant on.

11. Mr Murphy disputed that this had happened as he said that he was in the nursery on 5 October to complete work on the payroll and had been in the office during an induction meeting between the claimant and Mrs Murphy. He said he had been introduced to the claimant on that day, which she denied. The claimant indeed said she had seen Mr Murphy in the corridor one day and had to ask another colleague who he was. His only evidence of his presence on 5 October apart from his oral evidence was that he pointed to a printout from the computer timed at 11.53 am on 5 October. This does not prove that the claimant was introduced to Mr Murphy on that day, it simply proves that there was a printout made from the computer at that time and on that date. We also note that this was not referred to in Mr Murphy’s original statement but only in a supplementary statement. The claimant in any event confirmed that she had had the conversation with Mrs Murphy on Friday afternoon, rather than Friday morning when Mr Murphy said he generated the printout. Given that the claimant’s evidence in relation to this is unchallenged, we find as a fact that the claimant had the conversation with Mrs Murphy on the Friday afternoon, confirming she would be kept on at work.

12. The following week there appeared to be an incident involving child R which we deal with below. We believe that that incident probably occurred on 9 October but was not followed up by the respondent until later.

13. On 10 and 11 October 2014 the claimant was off work due to a stomach bug. She phoned in at approximately 8.15 am to explain to Michelle that she was unable to come to work that day. She phoned the following day at approximately 3.40 pm to let them know that she would be returning the following day, 12 October. Michelle did not work on Fridays. On the Friday, Mrs Murphy (according to the claimant’s account), indicated to the claimant that sickness was not acceptable unless she had “come to work sick and we send you home”. The claimant apologised and Mrs Murphy indicated, “It is not acceptable, Hayley, you are not long started with us”. If this occurred, which we find difficult to believe, we would be surprised that any employer would expect a sick staff member to come to work with small children who may catch the infection. We would have expected a discussion to check the claimant was well enough to return to work, but there was no evidence before us of such a conversation. Following this there was a conversation between the claimant and Michelle Gordon (her manager) on 15 October when Michelle spoke to the claimant in relation to her sickness absence. The only point noted on the form however was that the claimant was “told to ring earlier in the morning to give management time to sort rooms and cover”. There was no evidence before us that this conversation was pregnancy related and we are satisfied that it was appropriate and reasonable.

14. The claimant also raised the issue of her second antenatal appointment on 17 October and an appointment to have her flu vaccination. Although she asserted that she felt she had to ask several times in relation to this, Michelle confirmed the day before the antenatal appointment that she could attend and the claimant did not have to rearrange the appointment.

15. The claimant in her claim form outlined an incident involving child R. She said that she been in her room with a number of children on her own for approximately 20 minutes and child R really needed to go to the toilet. Since her colleague had not returned, the claimant opened the room door and watched the child walk across the corridor to the toilets, while waiting for her at the room door. Her manager Michelle then came along the corridor and she asked Michelle if she would take the child to the toilet, which Michelle did.

16. At some point between 12-15 October the claimant was provided with her contract by the respondent. Her witness statement said that the paperwork was given to her by Michelle Gordon on 12 October, that she took the paperwork home to read over the weekend and signed it on 15 October as she knew she was going into work on the Monday. This was different from what she said in cross-examination, when she asserted she had been given the documentation on 15 October, but left it in a cupboard in her room. The claimant said she signed the documents and handed them back on 18 October without reading them. It was put to the claimant that Michelle did not work Fridays and Catherine Murphy did not work Mondays and so when she alleged that either of them had been involved in meetings with her on those days of the week, this was not possible. There was a certain amount of confusion over which incidents happened when. We are not satisfied that all of the incidents referred to by the claimant actually happened at separate times. For example, she indicated that she was spoken to on 9 October regarding child R by Mrs Murphy, the same day the incident happened. The respondent’s case was that Mrs Murphy was out of the nursery on 9 October due to an inspection at their other childcare facility, Talloaks. However as Mrs Murphy was not present to give evidence, we cannot make any definitive finding in relation to this. We find it much more likely that the claimant was spoken to by Mrs Murphy on 16 October regarding a number of incidents, including the incident with child R.

17. Although they were not formally proven, we were provided with notes from Mrs Murphy’s diary. We appreciate that these are hearsay evidence and that it is possible that the notes were not recorded on the day when the incident actually happened. However we accept that the claimant was spoken to by Mrs Murphy regarding her work performance on 16 October and the claimant did not dispute this. This discussion included the way she was interacting with the children, an incident when a child was allowed to go to the toilet alone (child R), not cleaning up after a “pee accident” and not helping enough in rooms. The claimant disputed the “pee accident” as she said that she was left alone in the room with the children when this occurred. She could not take a child to the toilet and there was therefore an accident. She asked a colleague to go and get some paper towels to clear it up. She said that she dealt with the accident as best she could in the circumstances, given that she was on her own. No disciplinary action was taken in relation to these incidents.

There was a further incident on 17 October, when the claimant was caring for a number of children and child L became distressed. The child had caught her toe between a mirror and a vinyl mat on the floor. Mrs Murphy’s diary notes indicate that she went to the room where the claimant was because she heard the child crying. She asserted that it was she who saw the child’s toe was caught and that she told the claimant she had to “jump up” more quickly. This is hearsay evidence because Mrs Murphy was not present to give evidence and so we cannot give as much weight to this account as we could to sworn evidence. The claimant’s account was that she had moved to release the child’s foot but then Mrs Murphy took the child from her. What is clear is that there was no disciplinary action taken against the claimant, although the incident was recorded by Mrs Murphy.

18. The incident which led to the claimant’s dismissal occurred on 19 October. The claimant had taken two children, child E and child F to the toilet. The toilet room was just across the hallway from room 4 where the claimant worked. Child F had already finished at the toilet and washed his hands while the other child was still on the toilet. Child E was taking rather longer and child F began to get impatient. The claimant explained to him that he needed to wait and they would all go back together but he then started to cry and scream. The claimant opened the toilet door and in her witness statement to the tribunal, she said that she watched him walk across the hallway and push room 4 door open. She then went on to say, “Once I saw him take three steps forward into the room I returned to child E on the potty”. Her evidence was that a few seconds later, the toilet room door opened and another member of staff, Angela, was there. Angela asked her if she had let child F into the corridor. The claimant jumped up and said, “What, where?” Angela replied, “It’s a bit late now, he’s in the room”. The claimant’s account of this incident changed during the hearing. While in her witness statement she indicated that she had seen child F taking three steps forward into the room, in her evidence to the tribunal under cross-examination she was adamant that she had seen the door close behind the child and that he was definitely inside the room. This whole incident was the subject of some debate during cross-examination and we do not find it necessary to set out every particular in relation to it. We note however that when the claimant was called to the office later that afternoon and questioned about it, Mrs Murphy said to her that she shouldn’t “assume” and “You shouldn’t be assuming anything”. We accept that the claimant said she assumed child F had gone into the room because she saw him take steps forward into the room. We are not satisfied however that she saw child F go into room 4 and the door closed behind him.

19. About half an hour after this incident the claimant was called to the office and told that Catherine Murphy wanted to speak to her. Mrs Murphy asked the claimant what had happened with child F and the claimant explained the position. The claimant’s uncontradicted evidence was that Mrs Murphy then said, “Hayley, it hasn’t really been working out from you told us you were pregnant”.

20. The claimant’s evidence was that she had felt very upset and distressed and was trying to explain the situation to Mrs Murphy. The claimant’s evidence (and this is borne out by Mrs Murphy’s diary note) was that Mrs Murphy then started to talk to the claimant about the “worst case scenario”, where a child left alone in the corridor could have run up the corridor, out the front door and up onto the road. The claimant’s evidence was that this would have been impossible as the front door only opened from the inside and was only opened by a member of staff as a parent or guardian arrived at the nursery to leave or pick up their child. The claimant’s evidence was then that Mrs Murphy told her that she should, “Get her belongings and leave” and that Mrs Murphy would finish her shift. By this stage the claimant was crying and shaking. The claimant said that Mrs Murphy said to her, “I hope it works out for you, Hayley. You are a gorgeous girl and you have a great sense of humour”. No evidence was given of any procedures followed regarding the claimant’s dismissal. There did not appear to have been any investigation and no letter was sent to the claimant, outlining the alleged misconduct in advance. The respondent produced a template of a letter he asserted had been sent to the claimant before the disciplinary meeting. There was no copy of the actual letter which had been sent to the claimant and on this point we accept the evidence of the claimant, who said she never received any such letter. She was not told the possible outcome of the disciplinary hearing, nor was she given the opportunity to be accompanied.

21. The claimant subsequently sent a letter of appeal to the respondent in relation to her dismissal on 26 October 2012 and an appeal meeting was held on 6 November 2012.

22. The claimant was clear that at the outset of the appeal, she raised the issue of her pregnancy and asserted that she believed she had been dismissed because of her pregnancy. This was denied by the respondent. However it was clear to us that the transcript for the meeting produced by the respondent was incomplete. The meeting started shortly after 10.05 am. The transcript of the recording shows it ended at 11.28 am, after 43 minutes 46 seconds of recording. By any calculation, this leaves roughly 40 minutes unaccounted for. A few minutes were spent by Mr Murphy and the claimant going to check the closing action of the door of Room 4, but this was a brief interlude. Mr Murphy explained that he had recorded the meeting on his laptop. He did this without saying so explicitly to the claimant and asserted that because the room was so small, she would have been able to see quite clearly that a recording device was switched on on the laptop. That said, Mr Murphy asserted that he thought the computer was recording from the start of the meeting and in fact it was not. The transcript only covers the period from when the respondent asked the claimant to leave the appeal meeting so that he could speak to other witnesses, specifically Angela and Sinead. The respondent’s explanation for this was that the room was too small to have everyone there together, but the effect was that the claimant was excluded from this part of the appeal. It does not appear that the claimant was given any opportunity to cross-examine or put any questions to either of these witnesses.

23. We are satisfied that the claimant did raise the issue of her pregnancy, and how she believed it was connected to her dismissal right at the start of her appeal. She certainly raised it later in the appeal as is recorded on the transcript. We find it most unsatisfactory that Mr Murphy failed to tell the claimant that he intended to record the appeal meeting, and we accept that the claimant was not aware she was being recorded. We also believe that Mr Murphy’s failure to record the first part of the appeal when the claimant was putting forward her case was no mere oversight on his part. If it should have been obvious to the claimant that the meeting was being recorded, it should have been equally obvious to Mr Murphy that the recording device was not switched on.

24. We note that at the appeal Mrs Murphy (who had conducted the disciplinary hearing) sat in on the meeting. We also note that the appeal was conducted by Mr Murphy and there must therefore be a clear question as to his independence, giving that he was the husband of the dismissing officer.

25. The claimant noted that she had received no letter informing her that the reasons for her dismissal and the right to appeal until she received a letter from Mr Murphy following the appeal itself. It was set out in that letter of 6 November 2012 that she had been dismissed for gross misconduct. The body of the letter states:

“Hayley Davina Hylands

Re: Appeal to dismissal for gross misconduct

After further investigation we find that you did leave the child unattended and therefore dismissal for “gross misconduct” stands. This was a seriousness [sic] breach of health and safety for the child.

Regards

Shane Murphy”

26. Following the claimant’s dismissal she did not immediately find alternative work. She was told at the beginning of December 2012 by her doctors that she was not fit for full-time work and thereafter was certified as sick until her twins were born on 22 April 2013. Following the birth, the claimant was on maternity leave and then was out of work for some time. She indicated she had not been seeking work as she felt she was not fit to return to work. She subsequently started doing some voluntary work in March/April 2014 and indicated that she had not been working earlier. There was some dispute about this, as the claimant had indicated in a text message to a former colleague that she was working in Maloney’s Restaurant in November 2012. The claimant’s rather unconvincing explanation for this was that she had done this on her mother’s advice although it was untrue. She felt that former colleagues were contacting her to get information which they could take back to the Murphys, and the claimant asserted that this was exactly what had happened. The respondent alleged the claimant had been working at Maloney’s Restaurant both before and after the birth of the twins, although there was no other evidence produced to substantiate this allegation. While working for the respondent, the claimant earned £200.00 per week net.

THE RELEVANT LAW

27. The claimant in this matter has claimed unfair dismissal on grounds of her pregnancy and sex discrimination.

(a) Unfair dismissal

The right not to be unfairly dismissed is set out in Article 126 and following of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”). Article 131 of the 1996 Order provides as follows:-

“Article 131(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –

(1) The reason or principal reason for the dismissal is of a prescribed kind or;

(2) the dismissal takes place in prescribed circumstances ...

(3) a reason or a set of circumstances prescribed under this Article must relate to –

(a) pregnancy, childbirth or maternity ... and it may also relate to redundancy or other factors”.

Under Article 142(E) the one year qualifying period to bring a claim of unfair dismissal does not apply in the case of a claim of pregnancy dismissal.

28. The remedies for unfair dismissal are set out at Article 152 and following of the 1996 Order. Article 156(2) provides as follows:-

“156(2) - Where the tribunal considers that any conduct of the complainant before the dismissal (or where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that award accordingly”.

Similar provisions in relation to reduction of the compensatory award are to be found in Article 157(6).

29. In relation to the claim of unfair dismissal and in particular in relation to dismissal for misconduct, the leading authority in this jurisdiction is Rogan v South Eastern Health and Social Care Trust [2008] NICA 47. In that decision the Northern Ireland Court of Appeal quoted with approval the test already long established in Burchell and Others [1980] ICR 303. The Court of Appeal referred to the guidance given in Burchell and in Iceland Frozen Foods v Jones [1983] ICR 17. In Iceland Frozen Foods, Browne-Wilkinson J gave the following advice:-

“(1) The starting point should also be the words of [Article 130] themselves;

(2) In applying the [Article] an Industrial Tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair;

(3) In judging the reasonableness of the employer’s conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) In many though not all cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;

(5) The function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band or reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band, the dismissal is fair: if the dismissal falls outside the band, it is unfair”.

30. In British Home Stores Arnold J gave the following guidance:-

“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds on which to sustain that belief and thirdly, we think, that the employer at the stage which he formed that belief on those grounds, at any rate at the final stage on which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which could lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only on the basis of being “sure” as it is now said more normally in a criminal context, or to use the more old fashioned term, such as to put the matter “beyond reasonable doubt”. The test, and the test all the way through, its reasonableness and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion”.

(b) Sex Discrimination

31. In relation to the claimant’s claim of sex discrimination, protection against discrimination on grounds of pregnancy or maternity leave is contained in Article 5A of the Sex Discrimination (Northern Ireland) Order 1976 as amended (“the 1976 Order”). This provides as follows:-

“5A(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 grounds of the woman’s pregnancy, the person treats her less favourably that he would have treated her had she not become pregnant; 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 than he would treat her if she was neither exercising nor seeking to exercise, and have neither exercised nor sought to exercise, such a right ...

(3) For the purposes of paragraph (1) –

(a) in relation to a woman, the protected period begins each time she becomes pregnant, and the protected period associated with any particular pregnancy of hers ends in accordance with the following rules ...

(iii) if she is not entitled to ordinary maternity leave in respect of the pregnancy, the protected period ends at the end of the two weeks beginning with the end of the pregnancy;”

32. It has long been established, since the seminal decisions of the European Court of Justice in Dekker and Herz that discrimination on grounds of pregnancy must be sex discrimination, on the basis that only a woman can be pregnant.

33. Article 63A of the 1976 Order (as amended) sets out the legislation in relation to the burden of proof in sex discrimination cases. It provides as follows:-

“63A (1) This Article applies to any complaint presented under Article 63 to an Industrial Tribunal.

(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 the respondent –

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

(b) is by virtue of Articles 42 or 43 to be treated as having committed such an act of discrimination against the complainant,

the tribunal should uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed, that act”.

34. The burden of proof in discrimination cases has attracted considerable judicial comment. The guidance in Igen Ltd v Wong [2005] EWCA Civ 142 has been endorsed in a number of cases including by the Northern Ireland Court of Appeal in the case of Arthur v Northern Ireland Housing Executive and SHL UK Ltd [2007] NICA 25. The claimant must first show facts from which the tribunal could, in the absence of an adequate explanation from the respondent, conclude that the respondent has committed an unlawful act of discrimination. Once the tribunal has so concluded, the burden of proof then shifts to the respondent to prove that he did not commit an unlawful act of discrimination. The burden of proof has been considered consequently in a number of cases including Madarassy v Nomura International PLC [2007] IRLR 246. In that case, Lord Justice Mummery said:-

“The bare facts of the difference in status and the difference in treatment only indicate the possibility of discrimination. They are not, without more, sufficient material from which tribunal “could conclude” that on the balance of probabilities the respondent had committed an unlawful act of discrimination. “Could conclude” in Section 63A(2) must mean that “a reasonable tribunal could properly conclude” from all the evidence before it”.

35. In Laing v Manchester City Council [2006] IRLR 748, Mr Justice Elias said:-

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

Although that case related to race discrimination the same principles apply in relation to sex discrimination and pregnancy discrimination.

36. In Nelson v Newry and Mourne District Council [2009] NICA 24 Lord Justice Girvan, referring to the decision in Madarrasy added:-

“This approach makes it clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the claimant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination ... 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”.

37. We are also conscious of the judgment of Elias LJ in Laing (referred to above) in which it was noted that it was not obligatory for a tribunal to go through every step set out in Igen in each case. As was noted in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] NI146 by Lord Nicholl, sometimes the “less favourable treatment” issue can be resolved without, at the same time, deciding the “reason why” issue.

REASONS AND DECISION

(a) Unfair Dismissal

38. As we set out at the beginning of this decision, we believe the respondent has been disadvantaged by the fact that they failed to call witnesses who were actually present during most of the events referred to by the claimant and who had direct knowledge of the various incidents. This means that in many respects, the claimant’s evidence is the only direct evidence which we have in relation to a number of events. The respondent also failed to adduce any evidence in relation to its policies and procedures, the claimant’s contract of employment and the respondent’s disciplinary procedures (if any). It appears from the index to the bundle of documents produced to us that a number of documents to which we could have been referred in relation to the respondent’s policies and procedures were in the bundle, but were never opened to us in the course of the hearing. It is not for us to direct either party as to how they conduct their case or what evidence they should adduce. We cannot however take account of evidence if the relevant witnesses are not present.

39. We have considered the case put forward by Mr Murphy on behalf of the respondent, which is effectively that the claimant was not dismissed on grounds of pregnancy, but was dismissed for gross misconduct, namely leaving child F unsupervised in the corridor alone. We can appreciate that the respondent’s business is the care of small children and that small children should not be left unsupervised. We have taken into account that the claimant was an experienced childcare worker. We are concerned that right from the time when the claimant told Mrs Murphy of her pregnancy, it was clear that the pregnancy was seen as a problem (see paras 8-10 above). Further, the unchallenged evidence of the claimant was that at the disciplinary meeting, Mrs Murphy said to her, “Hayley, it hasn’t really been working out from you told us you were pregnant.” This is not recorded in Mrs Murphy’s notes, but we are satisfied that it occurred and that the claimant’s pregnancy was the main reason for her dismissal. We are not persuaded that if the claimant had not been pregnant, she would have been dismissed in any event over this incident. We are not satisfied either that the respondent has demonstrated why the incident concerned warranted being treated as gross misconduct. Certainly we have also indicated (as set out above) that we are not satisfied that the claimant actually saw child F going into the room where he was supposed to be. We also accept that the claimant tried to put a more positive spin on this in her evidence to the tribunal, and we did not accept her evidence to the tribunal on this point.

40. However, there was no evidence put before us to indicate that the claimant knew or should have known that this matter would be treated as gross misconduct by the respondent. There had been a similar incident just a few days before and there was no suggestion in any of the evidence produced to us that the claimant had been told that this matter was a disciplinary matter or that any future incidents would be treated as a disciplinary matter. The claimant gave evidence (which was not disputed) that the front door of the premises was kept locked and that it was only opened by an adult to allow children in and out with adults present. There was therefore no suggestion that the child was in immediate danger. The respondent has not satisfied us that dismissal in response to this incident was within the band of reasonable responses. We also note that absolutely no proper procedures were followed in relation to the claimant’s dismissal. It appears that the disciplinary meeting was conducted without any proper notice to the claimant, she was not made aware of the allegations made against her or given a proper opportunity to respond. She was not permitted to be accompanied nor was she given any reasons for her dismissal. She was not notified of her right to appeal, but decided to appeal through having read her contract of employment. The entire disciplinary and appeal process was shambolic and did not comply with proper procedures.

41. We are very conscious that we must not substitute our view for that of the employer. The test throughout is whether dismissal was reasonable (see Burchell, paragraph 29, 30 above). We are satisfied that the comments made to the claimant on 3 October and 19 October about her pregnancy show that the main reason for the dismissal was the claimant’s pregnancy. Had the claimant’s misconduct been the principal reason, we would have expected the employer to start formal disciplinary action in relation to the alleged misconduct on 9 and 16 October, or at least tell the claimant that any recurrence would lead to disciplinary action. Mrs Murphy did not do so, nor did she follow proper procedures in the dismissal and accordingly we find that the dismissal was automatically unfair as it was on grounds of pregnancy.

42. The claimant’s evidence was that in early December, some 7 weeks after her dismissal, she was advised she was not fit for work and remained so until her twins were born in April 2013. She told us she had made no effort to find other work until she started some voluntary work in March/April 2014. She started working 16 hours per week from November 2014. Given that the claimant is under a duty to mitigate her loss, which by her own evidence she has failed to do, we consider the compensatory award should be limited to her loss of earnings immediately after dismissal until she was advised to stop work in early December 2012, ie, £200.00 x 7 weeks = £1,400.00. As she had less than one years’ service, her basic award is nil.

43. We have also considered whether the claimant contributed to her dismissal by her conduct. We are of the view that she did, in that she agreed that she allowed child F to cross the corridor on his own, even though she was watching him. We have found that the claimant did not see child F go into the room and the door close behind him, which allowed him to turn and wander up the corridor. Accordingly we are of the view that the claimant’s conduct did contribute to her dismissal and that it would be appropriate to reduce the compensatory award by 10%. Accordingly we order the respondent to pay the claimant £1,400.00 - £140.00 = £1,260.00 by way of compensation for unfair dismissal.

SEX DISCRIMINATION

44. In relation to the question of sex discrimination we have to consider first of all whether the claimant has adduced evidence from which a tribunal could reasonably conclude that there has been discrimination. (See paragraphs 33-37 above).

45. On the basis of the evidence heard, we are satisfied that Mrs Murphy did tell the claimant on 3 October 2012 that she would have to speak to her husband as to whether they would keep the claimant on once they knew she was pregnant. We have set out our reasons in relation to this above at paragraphs 8-10. The next issue is whether the subsequent treatment that the claimant received was discriminatory on grounds of her pregnancy. We are satisfied that the claimant had a couple of uncomfortable days early in October when it was not clear as to whether not she was going to be kept on at work. She was then told that she would be kept at work on 5 October and we appreciate that she was concerned about the future of her job over those couple of days.

46. The following week there was the incident with child R, although the claimant was not spoken to in relation to this until 16 October. However during that week the claimant had two days off. We accept that the claimant was spoken to about this on her return to work. We do not accept however that this was connected with her pregnancy. We note that the record of the return to work interview states that the claimant was reminded that she should telephone in early in relation to any illness so that arrangements for cover could be made. We do not consider that this is an unreasonable approach on the part of an employer.

47. In relation to the incident discussed on 16 October, we accept that there had been an incident where a child had been sent across the corridor to the toilet on her own. Given the tender age of the children concerned, who were toddlers, we appreciate that the employer would not have considered this acceptable or satisfactory. We note that the claimant was spoken to about this matter on 16 October. We were not given any evidence from the respondent to indicate how seriously they treated this incident or whether the respondent had indicated to the claimant that any repetition of this event would lead to disciplinary action. There was no disciplinary action on this occasion, and accordingly it does not appear to us that the respondent treated this as an extremely serious matter.

48. On 19 October, when the claimant was called in over the incident involving child F, we note that she was called in to see Mrs Murphy approximately half an hour after the incident occurred. She was not given any notice of the meeting nor was she told that it was to be a disciplinary meeting. She was asked for her account of the incident and was dismissed within minutes. She was not given the opportunity to be represented at the meeting nor was she given any notice in advance that the matter would be treated as gross misconduct by her employer. Instead she was summarily dismissed.

49. We are satisfied on the basis of the incident which occurred on 3 October and also the claimant’s evidence about Mrs Murphy’s comments on 16 October, (to the effect that nothing had been going right since the claimant told them she was pregnant) that the claimant’s pregnancy was very much at the forefront of Mrs Murphy’s mind. We accept also that no evidence has been adduced by the respondent to convince us that this incident did not occur. We are therefore satisfied that the claimant has proven facts from which we could properly conclude that there has been unlawful discrimination, in the absence of a reasonable explanation from the employer. The burden therefore shifts to the employer to provide an explanation free of discrimination for their conduct.

50. The respondent’s case is that they did not discriminate against the claimant on grounds of her gender, but that she was dismissed for gross misconduct. We have already set out above that we are satisfied, on the balance of probabilities, that the claimant was dismissed on grounds of pregnancy. The question to consider is whether the respondent has discharged the burden of showing that its treatment of the claimant is free from discrimination. We are not satisfied they have done so. From the day the claimant told Catherine Murphy of her pregnancy we accept that the respondent’s attitude to her was coloured by her pregnancy. We have also accepted that at the disciplinary meeting, the claimant’s unchallenged evidence was that Mrs Murphy said to her: “Hayley, it’s hasn’t really been working out from you told us you were pregnant”. We find that the respondent’s attitude to the claimant changed once they knew she was pregnant and that they then used any indication of misconduct on the claimant’s part as an excuse to end her employment. The claimant’s evidence was that she was hurt and distressed by the respondent’s treatment of her, and we accept that, although there was no independent corroboration such as a medical report. While we have some concerns that the claimant “over-egged” her claim, we accept that the respondent acted in a cavalier fashion towards her, both during her employment and at the hearing. Given the incidents which occurred, the short duration of the claimant’s employment and the evidence from claimant of her distress, we consider the sum of £5,000.00 is an appropriate award for injury to feelings. We order the respondent to pay this amount to the claimant. Interest is payable on this amount in accordance with Regulation 3 of the Industrial Tribunals (Interest on Awards in Sex Discrimination and Disability Discrimination Cases) Regulations (NI) 1996. Interest is payable on the award made for injury to feelings from the date the injury commenced, until the date of calculation. A different date may be used if we consider serious injustice would be caused by calculating interest by reference to that period. Because this case was the subject of an appeal to the Court of Appeal and was then remitted for rehearing, there has been delay, but that is in no way the fault of the respondent. We consider it would be unjust to order the respondent to pay interest on the award from 19 October 2012, and so we award interest from the mid-point between 19 October 2012 and the date of calculation i.e. from 19 December 2013 to the date of calculation, a period of 1 year 2 months.

We order the respondent to pay to the claimant the following sums in respect of injury to feelings:-

Award £5,000.00

Interest at 8% from

19 December 2013

to date of calculation: £ 466.67

________

£5,466.67

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

Employment Judge:

Date and place of hearing: 12-14 January 2015, Belfast.

Date decision recorded in register and issued to parties: