Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  2302/15

 

 

 

CLAIMANT:                          Kirsty Patricia Edgar

 

 

RESPONDENT:                  FX4 Enterprise Ltd

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and suffered unlawful discrimination on the ground of sex by reason of her pregnancy.  The tribunal awards the claimant compensation of £25,400.29.

 

 

 

Constitution of Tribunal:

Employment Judge:          Employment Judge Greene

Members:                             Ms G Ferguson

                                                Mr J McKeown

 

Appearances:

The claimant was represented by Ms L Jones, Solicitor, of Higgins Hollywood Deazley, Solicitors.

The respondent did not attend, nor was it represented.

 

Sources of evidence

 

1.         The tribunal received evidence from the claimant.  There were not any witnesses or evidence adduced on behalf of the respondent.  The claimant also produced a bundle of documents comprising 65 pages, a schedule of loss and a Case Management Discussion Record of Proceedings of 4 January 2016. 

 

The claim and defence

 

2.         (1)       The claimant claimed that she had been unfairly dismissed by the respondent; that she had suffered discrimination on the ground of her sex and that she had suffered an unlawful deduction from her wages.

 

(2)       The respondent disputed the claimant’s claims.

 

(3)       At today’s hearing the respondent was not in attendance nor represented.  The tribunal was satisfied that the respondent had been notified of today’s hearing.  In the absence of any objection, on behalf of the claimant, the tribunal decided to proceed with the hearing of this claim. 

 

(4)       At the outset of the hearing, the claimant’s representative applied to strike out the respondent’s response as it had failed to respond to Notices for Additional Information and Discovery, as ordered, by 20 January 2016.  The claimant’s representative indicated that she had served notice of the application to strike out on the respondent’s then representative on 5 May 2016.  The representative came off record on 6 May 2016.  It was not clear whether the respondent has been made aware of this application. 

 

(5)       However, as it would have been necessary to adjourn the hearing and serve the application on the respondent personally and reconvene, the claimant’s representative elected not to proceed with the application to strike out today.  The hearing of the claim therefore proceeded.    

 

(6)       The claimant’s representative also notified the tribunal that the claimant was abandoning her claim for holiday pay. 

 

The Issues

 

3.         Following a Case Management Discussion on 4 January 2016 the issues for determination were identified as follows:-

 

Legal Issues

 

(1)       Was the claimant unfairly dismissed by the respondent, whether contrary to Articles 130, 131 or 135 of the Employment Rights (Northern Ireland) Order 1996 or otherwise?

 

(2)       Was the claimant discriminated against by the respondent contrary to Articles 5A(1) and 8(2)(b) of the Sex Discrimination (Northern Ireland) Order 1976?

 

(3)       Was the claimant paid what she was contractually entitled to in terms of her claims that:-

 

(i)         she suffered an unlawful deduction, in that she was not paid statutory maternity pay by the respondent;

 

(ii)        she suffered an unlawful deduction, in that she was not paid holiday pay by the respondent.

 

            (4)       What compensation, if any, is the claimant entitled to receive?

 

            Factual Issues

 

(1)       What was the nature and size of the respondent business?  Who are the director(s)?  Do the said director(s) operate any associated companies and what was the relationship, if any, between the respective companies?

 

(2)       How many employees were employed by the respondent and what were their respective roles?

 

(3)       What were the claimant’s role and duties?

 

(4)       What was the claimant’s salary?

 

(5)       Did the claimant inform Kyle Harvey on or about 12 February 2015 that she required a risk assessment carried out by reason of her pregnancy?  If so, what action was taken by the respondent in response to this request?

 

(6)       What action was taken by the respondent on receipt of the claimant’s letter of 26 March 2015?

 

(7)       Why was the claimant not permitted to leave work on 30 March 2015 for medical attention until the arrival of Kyle Harvey?

 

(8)       What economic downturn did the respondent suffer and when?

 

(9)       What loss of business did the respondent suffer and when?

 

(10)     What were the financial savings identified by the respondent which it needed to make and the amount of the same?

 

(11)     Was there a diminishing need for a telemarketing role?

 

(12)     What was the pool for redundancy and the criteria for same?

 

(13)     What were the selection criteria relied upon by the respondent for the said pool?

 

(14)     What meetings did the respondent, it servants and agents have with the claimant in relation to the potential redundancy?

 

(15)     What was the reason or principle reason for the claimant’s dismissal?  Why was the claimant selected to be made redundant and when did the respondent decide to dismiss the claimant?  What, if any, influence did the claimant’s pregnancy have on the decision to dismiss her?

 

(16)     What alternatives were considered by the respondent to avoid making the claimant redundant?

 

(17)     What employees were hired or employed by the respondent from January 2015 to date hereof?  What were their roles, commencement dates in respective salaries?

 

(18)     What were the roles and duties of the two telesales executives (other than the claimant) invited to the meeting of 27 April 2015, both prior to and subsequent to this meeting?

 

(19)     Why was the claimant’s predecessor, Sarah Hall, dismissed by the respondent?  What conversation or discussion did the claimant have with Ian Ryan, car park attendant, at or about the commencement of her employment?

 

(20)     What conversation or discussion did the claimant have with David Neill in or about December 2014?

 

(21)     What financial loss and/or injury to feelings has the claimant suffered?

 

(22)     When would the claimant’s maternity leave have commenced?

 

(23)     When would the claimant’s maternity leave have ended?

 

(24)     What salary or payment would the claimant have received, or is owed, by reason of her maternity leave?

 

(25)     If appropriate, what steps has the claimant taken to mitigate her loss, if any, arising from her dismissal?

 

Legal Issues 3(3)(ii) is no longer relevant in light of the claimant’s withdrawal of her claim for holiday pay.

 

Findings of fact

 

4.         (1)       The claimant was born on 14 February 1985.  She worked for the respondent from 5 May 2014 until 22 June 2015 when she was dismissed on the ground of redundancy.

 

            (2)       The claimant earned per month £1,124.00 net, £1,291.67 gross.

 

            (3)       The respondent has a number of businesses including a multi-storey car park at Frances Street, Belfast where the claimant was based.

 

            (4)       The claimant was employed as a Business Accounts Consultant which involved telesales and telemarketing.  She also was given other tasks and duties to do, which included; ensuring that all direct debit orders were in order; administrative tasks such as dealing with car park queries; responding to emails; responding to telephone calls; making signs for the car park; attending to car park customers; recruitment of a car park attendant in around December 2014 and a cleaner in around April 2015; arranging appointments and MOT bookings for one of the respondent’s associated businesses, carrying out health and safety checks; and maintenance of some of the equipment within the car park itself.

 

            (5)       The claimant believed that Mr John Curistan, who was a director and owner of the respondent company, also owned a number of other businesses in and outside of Belfast.

 

            (6)       At the car park in Frances Street there was a number of other employees, Ian Ryan, a car park attendant who worked from Monday to Thursday, 7.00 am to 7.00 pm; Nathan McDonell a car park attendant who worked on Friday and Saturday, from 7.00 am to 7.00 pm; Kyle Harvey the manager, though based at a different location; and two night-shift persons.  The two night-shift persons were John Curistan (the owner) who worked on Sunday, Monday and Tuesday and James Parrett who covered the remaining nights.

 

            (7)       In or about April 2015 Ian Ryan was promoted within the business.  The claimant recruited Andy Gibbons to replace him and to carry out the same role as Ian Ryan had previously done.  The claimant also recruited a new cleaner called Damian.

 

            (8)       On or about 3 or 4 December 2014 the claimant became aware that she was pregnant.  The respondent became aware on the same day as the claimant following a phone-call to the claimant at work from her doctor informing her that she was pregnant and that she needed a check-up urgently.  She immediately informed Mr Curistan who gave her permission to leave. 

 

            (9)       The claimant subsequently had a discussion with a fellow employee, David Neill, about her pregnancy.  He told her to be careful because John Curistan did not like people who are pregnant working for him.

 

            (10)     The claimant returned to work the same day and continued to work as normal until early February 2015, despite fears that she might suffer a miscarriage. 

 

            (11)     In early February 2015 the claimant was detained in hospital by reason of issues in connection with her unborn child.  The claimant was off work for five days.  On returning to work in February 2015 the claimant asked her manager, Kyle Harvey, to carry out a risk assessment.  The midwife had advised the claimant to do so as she was at times alone in the workplace.  Mr Harvey indicated that he would attend the same day to carry out the risk assessment but he never carried out a risk assessment.

 

            (12)     By letter of 26 March 2015 the claimant wrote to the respondent informing her employer that the baby was due for delivery on 4 August 2015.  She also enclosed her MATB1 certificate and indicated she would like to start her maternity leave on 23 June 2015.  She stated, in the letter, that she understood that she would qualify for 52 weeks’ maternity leave made up of 26 weeks’ ordinary maternity leave and a further 26 weeks of additional maternity leave.  She also indicated that she believed she qualified for statutory maternity pay and asked her employer to let her know what she would receive and how this would be paid.  She asked what holidays she was entitled to before this point.  The respondent did not reply to this letter.

 

            (13)     On 30 March 2015, whilst at work, the claimant was feeling unwell and had a very severe pain in her stomach.  She contacted her doctor who asked her to attend at 2.00 pm.  However it took 1½ hours before the respondent provided relief cover so that she could go to her doctor, which delay, greatly upset her.

 

            (14)     On 27 April 2015 the respondent called a general staff meeting.  The claimant was told by her manager, Kyle Harvey, to attend at their Lisburn premises.  The purpose of the meeting was not explained to the claimant.

 

            (15)     Present at the meeting were the claimant, Shirley-Anne McFerran, the respondent’s HR person, David Neill, the IT person for the respondent and a person called Gary who did external sales.

 

            (16)     The claimant was told that the meeting was to do with cutbacks within the whole company.  However the meeting only lasted a few minutes.  Shirley-Anne McFerran stated, at the meeting, that the business was not doing well and that they were looking at making cutbacks to save money.  She further stated that she would have individual meetings with all those present and she would be writing out to them to let them know when the meetings would take place.  After the meeting the claimant spoke to Shirley-Anne McFerran because by 27 April 2015 she had still not received a response to her letter of 26 March 2015.  Ms McFerran said that she would look into the matter.

 

            (17)     The claimant was very upset as she thought her redundancy was going to happen because of her pregnancy.  She believed this because Kyle Harvey and Ian Ryan had told her that when the girl she had replaced (Sarah Hall) became pregnant Ian Ryan had been directed to check the CCTV cameras to see if there was anything on the cameras to enable the respondent to sack her.  The girl was subsequently taken to a disciplinary meeting and sacked.

 

            (18)     The claimant went off work on 27 April 2015 due to illness arising from stress caused to her at work.  She went to her doctor a few days later because she was still under stress and was unable to eat or sleep.

 

            (19)     By letter of 30 April 2015 Shirley-Anne McFerran replied to the claimant’s letter of 26 March 2015 on behalf of the respondent.  This letter addressed the issues that the claimant had raised but was only sent after the claimant had met with Ms McFerran on 27 April 2015.  It confirmed that the claimant would be entitled to 26 weeks ordinary maternity leave and 26 weeks additional maternity leave.  It also confirmed that she met the criteria for statutory maternity pay.

 

            (20)     The respondent wrote a second letter of 30 April 2015 in which it proposed an individual consultation with the claimant, in relation to redundancy, on
6 May 2015.  It also stated that other options would be explored other than redundancy, including any proposals the claimant might wish to bring forward. 

 

            (21)     The respondent, through Ms McFerran, wrote again to the claimant by letter of 12 May 2015.  In that letter Ms McFerran recorded that the claimant was unable to attend on 6 May 2015 for health reasons.  She had proposed an alternative date, 11 May 2015, for the individual consultation.  However she stated that she had since received a further sick line for two weeks commencing on 11 May 2015.  She invited the claimant to suggest how things could be progressed to their mutual satisfaction in relation to the consultation.  Ms McFerran proposed to the claimant a meeting on
19 May 2015 to discuss the redundancy and the other options.  The claimant was told that she could be accompanied or alternatively she could make her proposals in writing by that date.  The letter also left open the possibility that the claimant could make other proposals or suggestions. 

 

            (22)     On 19 May 2015 an individual consultation meeting was held with the claimant.  In attendance were Shirley-Anne McFerran, who chaired the meeting, and Lynn Derby as a notetaker.  The claimant was unaccompanied.  At the meeting the claimant asked for a copy of the respondent’s redundancy policy but was told by Ms McFerran that she was unaware if the respondent had a written redundancy policy but if so it would be forwarded to the claimant promptly.  The claimant raised the issue as to why the respondent had employed a new person, if it were experiencing a downturn, and was told that this was in relation to the area of external sales.  The claimant further asserted that she believed she had been targeted because she was pregnant which Ms McFerran denied.  The claimant challenged whether the business had suffered a downturn as it had gained new customers despite losing an existing customer.  The claimant also asked why a job was advertised on 7 May 2015, for her working hours, after the general meeting on 27 April 2015 announcing a potential redundancy situation in relation to her post.  Ms McFerran was unaware of the advertisement but confirmed she would investigate and respond on the issue.  Ms McFerran also confirmed that there were not any alternative positions within the respondent company to discuss.  The claimant also proposed that she could commence her maternity leave early in case the situation changed in the future.  Ms McFerran confirmed that she would consider this proposal and discuss it at the next consultation meeting. 

 

            (23)     The claimant submitted a further sick line.  By letter of 22 May 2015 the respondent wrote to the claimant and confirmed that there was not any written redundancy policy.  The respondent also indicated that the claimant’s proposal to start her maternity leave early was not acceptable.  She also said that the job advertisement, to which the claimant had referred, was in relation to a post with another company and that the loss of a particular client had had a negative impact on the respondent’s financial situation.  The letter then proposed that a further meeting would be held on 28 May 2015 with the claimant before any decisions were taken.

 

            (24)     Around 27 April 2015 employed in sales were, Kyle Harvey, Gary and Ian Ryan.  Neither Kyle Harvey nor Ian Ryan were brought to any meeting about potential redundancy.  It was around that time, it is alleged, that two sales persons resigned although the claimant is unaware of their identity.  There were not any sales persons at the meeting to consult about redundancy on 27 April 2015.

 

            (25)     On or about 27 April 2015 the claimant had recruited a new car park attendant so that Ian Ryan could get promotion and move to external sales.  It was clear to the claimant at that time that sales were increasing.  The post, for which the claimant had conducted the interviews to fill, was not offered to the claimant as an alternative to redundancy.

 

            (26)     Around that time the respondent had won two new clients which resulted in the car park being used to full capacity.  In addition there was some discussion that two additional floors might be added to the car park as the respondent already had planning permission to do so.  The claimant, at the discussions for redundancy, had also mentioned that she would consider reducing her hours or taking on another role if there was one that she could fulfil or indeed starting her maternity leave early.  The respondent did not make any response to the claimant’s proposal to reduce her hours.

 

            (27)     By letter of 15 June 2015 Shirley-Anne McFerran wrote to the claimant, on behalf of the respondent, to indicate to her that she had been made redundant.  The letter suggested that the reason for her redundancy was that the respondent was experiencing an economic turndown in business in recent months and that this had led to a diminishing need for the claimant’s role and as there was no alternative position she was being made redundant.  The letter offered her a right of appeal and thanked her for her hard work and indeed indicated that the redundancy was not a reflection on the claimant’s ability or performance.  Ms McFerran had indicated to the claimant, earlier that day by telephone, that she was being made redundant.

 

            (28)     Ms McFerran had left the redundancy letter at the claimant’s place of work and then had given a number of undertakings, which were not fulfilled, to deliver the letter to her.  However the claimant did not receive the letter until 23 June 2015 as, in addition, it was sent to the wrong address. 

 

            (29)     The claimant did not appeal as she was outside of the five days appeal period. 

 

            (30)     Following the claimant’s dismissal she received income support from July 2015.  She had intended to return to work around 1 December 2015 because that was a busy time of the year in the car park.  The claimant neither received statutory maternity pay nor maternity allowance following her dismissal. 

 

            (31)     The Social Security Agency told her that she could apply for maternity pay from the state but that she would have to get a form from John Curistan in order to make the claim.  She asked Mr Curistan for the form and he never provided it.  She therefore did not receive maternity pay.

 

            (32)     The evidence before the tribunal was that statutory maternity pay is paid at 90% of average gross weekly earnings for the first 6 weeks.  Thereafter for up to 33 weeks it is payable at either 90% of her average gross weekly wage or £139.58, whichever is less. 

 

            (33)     From December 2015 the claimant has been looking for work.  She has used the job centre website.  She has also uploaded her curriculum vitae and can therefore apply quite easily online for jobs advertised through the website which she has done. 

 

            (34)     She applied for a job with the Iceland supermarket chain in March 2016 but she has not heard anything in response yet.  She also applied for a job with a call centre, LBM, now Convergys.

 

            (35)     The claimant explained to the tribunal that it was stressful knowing that your boss did not want you to be there because you were pregnant.  From the moment she told Mr Curistan that she was pregnant he hardly spoke to her whereas previously he would have chatted to her.  She believed that the lack of conversation with Mr Curistan related to her pregnancy because when he was in the office he talked to other male members of staff at that time in a normal fashion. 

 

            (36)     In relation to the two resignations the claimant did not believe that there had been any resignations as she believed the sales representatives Gary, Kyle and Ian were still in position.

 

The Law

 

5.         (1)       To establish that a dismissal is not unfair an employer must establish the reason for the dismissal and that it is one of the statutory reasons that can render a dismissal not unfair.  If an employer establishes both of these requirements then whether the dismissal was fair or not depends on whether in all of the circumstances the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee.  (Article 130 The Employment Rights (Northern Ireland) Order 1996).

 

            (2)       An employee who is dismissed shall be regarded as unfairly dismissed if the reason or principle reason for the dismissal is of a prescribed kind or the dismissal takes place in prescribed circumstances.  The reason or set of circumstances prescribed under this Article must relate to pregnancy, childbirth or maternity (Article 131(1)(a), (b), (3)(a) The Employment Rights (Northern Ireland) Order 1996).

 

            (3)       An employee who is dismissed shall be regarded as unfairly dismissed if the reason or principle reason for the dismissal is that the employee brought proceedings against the employer to enforce a relevant statutory right or allege that the employer had infringed a relevant statutory right in circumstances set out within the applicable Article.  (Article 135 The Employment Rights (Northern Ireland) Order 1996).

 

            (4)       A person discriminates against a woman if either, at a time in the protected period and on the ground of the woman’s pregnancy the person treats her less favourably or 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.  (Article 5A(1) Sex Discrimination (Northern Ireland) Order 1976).

 

            (5)       The protected period for Article 5A(1) begins when the woman becomes pregnant and ends two weeks after the end of the pregnancy or if entitled to ordinary or additional maternity leave at the end of either of ordinary maternity leave or additional maternity leave.  (Article 5A(3) Sex Discrimination (Northern Ireland) Order 1976).

 

            (6)       It is unlawful for a person, in the case of a woman employed by him, to discriminate against her by dismissing her or subjecting her to any other detriment (Article 8(2)(b) Sex Discrimination (Northern Ireland) Order 1976).

 

            (7)       An employer shall not make a deduction from wages of a worker employed by him unless, either the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract or the worker has previously signified in writing his agreement or consent to the making of the deduction (Article 45(1) The Employment Rights (Northern Ireland) Order 1996).

 

            (8)       Wages for the purposes of an unlawful deduction from wages includes holiday pay or statutory maternity pay (Article 59(1)(a) and (c) The Employment Rights (Northern Ireland) Order 1996).

 

            (9)       Where the tribunal considers that any conduct of the claimant before dismissal was such that it would be just and equitable to reduce the amount of the basic award the tribunal shall reduce the amount accordingly (Article 156(2) The Employment Rights (Northern Ireland) Order 1996.

 

            (10)     Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action on the claimant it shall reduce the amount of the compensatory award by such a proportion as it considers just and equitable having regard to that finding (Article 157(6) The Employment Rights (Northern Ireland) 1996).

 

            (11)     In ascertaining the loss suffered by the employee the tribunal shall apply the same duty to mitigate the loss as applies to damage recoverable under the common law of Northern Ireland.

 

            (12)     Compensation for injury to feelings falls into three broad bands; the top band ranges between £15,000.00 and £25,000.00 and is for the most serious cases such as where there has been a lengthy campaign of discriminatory harassment; the middle band between £5,000.00 and £15,000.00 for serious cases that do not merit an award in the highest band; and the lower band between £500.00 and £5,000.00 for less serious cases such as where the act of discrimination is an isolated or a one-off occurrence (Vento v The Chief Constable of West Yorkshire Police (Number 2) [2003] IRLR 102 CA).

 

            (13)     The Vento guidelines had been updated in line with inflation, as measured by the retail prices index: the top of the bottom band will be changed from £5,000.00 to £6,000.00, the top of the middle band will be changed from £15,000.00 to £18,000.00 and the top of the higher band will be changed from £25,000.00 to £30,000.00 (Da’Bell v NIPCC [2010] IRLR 19).

 

            (14)     An industrial tribunal may include interest on any award for sex discrimination and must consider doing so whether an application was made for interest or not.  (Regulation 3 Industrial Tribunals (Interest on awards in Sex and Disability Discrimination cases) Regulations (Northern Ireland) 1996 No.581)

 

            (15)     Any award of interest made by a tribunal should be calculated in accordance with Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination cases) Regulations (Northern Ireland) 1996 No.581.

 

Application of the law and the findings of fact to the issues

 

Holiday Pay

 

6.         (1)       As the claimant abandoned her claim for holiday pay at the outset of the hearing that claim is dismissed.

 

Unlawful Deduction from Wages

 

            (2)       As the claimant was dismissed on 22 June 2015 and her entitlement to maternity pay or allowance would only have begun on 23 June 2015 she cannot recover those payments, that she did not receive from 23 June 2015, as an unlawful deduction from wages as her employment had ended.

 

Reason for dismissal

 

(3)       The tribunal is not persuaded that the dismissal of the claimant related to a redundancy situation.  In so concluding the tribunal had regard to the following matters:-

 

(i)        The so-called general meeting of 27 April 2015 was not a general meeting as all staff members were not in attendance.

 

(ii)       The respondent recruited two new people one week before the general meeting to discuss redundancy.  One of them was to replace    Ian Ryan, a car park attendant.

 

(iii)      The respondent was asked for information about the recruitment of additional people in the Notices for Additional Information and         Discovery and they were not answered.

 

(iv)      The tribunal accepts the claimant’s evidence that although a            significant customer may well have been lost by the respondent, new     customers had been added; the car park was full; and there was some           discussion about increasing the size of the car park.

 

(4)       But even if the tribunal is wrong and there was a redundancy situation there was not any evidence before the tribunal about how the selection of the claimant was made or the pool for consideration for redundancy, given that there were three other persons who did the same job as the claimant.  In addition the respondent did not have a redundancy policy.  The tribunal therefore is not persuaded, in all the circumstances, that even if there were a redundancy situation, which is potentially a fair reason for dismissal, that the respondent had acted fairly in all the circumstances.

 

(5)       Accordingly the tribunal, in the absence of evidence of any other reason for dismissal, is satisfied that the principle reason or the set of circumstances that give rise to the claimant’s dismissal was the fact of her pregnancy.  In so concluding the tribunal had regard to the evidence that a number of members of staff had intimated to the claimant that John Curistan, the owner of the respondent company, did not like having pregnant employees.

 

(6)       The tribunal accepts the claimant’s evidence that once John Curistan became aware of the claimant’s pregnancy that he ostracised her.

 

(7)       The tribunal is further satisfied that the respondent, on the basis of the evidence before it, had engineered the dismissal of the claimant’s predecessor when she became pregnant.

 

Unfair dismissal

 

(8)       The tribunal is satisfied that dismissal falls within Article 131(1), (2) and (3)(a) of the 1996 Order and therefore is automatically unfair.

 

(9)       The tribunal is satisfied that the dismissal was unfair according to the ordinary principles of unfair dismissal in accordance with Article 130 of the 1996 Order. 

 

(10)     The tribunal is satisfied that the claimant has mitigated her loss.

 

(11)     The tribunal is further satisfied that the conduct or actions of the claimant did not contribute to her dismissal.

 

Sex discrimination

 

(11)     The tribunal is satisfied that the reason for the claimant’s dismissal was that she was pregnant.  In so concluding the tribunal had regard to the following matters:-

 

(i)        The tribunal accepts the evidence, on behalf of the claimant that the respondent did not want to have a pregnant employee working at his car park.

 

(ii)       Once John Curistan became aware that the claimant was pregnant he ceased speaking to her while speaking to other fellow employees in the vicinity of where the claimant worked.

 

(iii)      The claimant approached her employer on 26 March 2015 for advice and she did not  receive a reply until 30 April 2015 and only after she had raised the matter after the meeting on 27 April 2015 called to consider the possibility of a redundancy.

 

(iv)      The tribunal accepts the comments of fellow employees Kyle Harvey and David Neill about John Curistan’s attitude or dislike at having pregnant employees in his business.

 

(v)       The tribunal does not accept that this was a redundancy situation.  There is not therefore any other reason being advanced by the respondent to justify the dismissal.

 

(vi)      The claimant was dismissed the day before she was due to go on maternity leave.

 

Compensation

 

(11)     The tribunal is satisfied that the claimant’s feelings were injured and that the appropriate band within which they fall is the middle band of Vento.

 

(12)     In calculating the compensatory element, the tribunal has awarded damages under The Employment Rights (Northern Ireland) Order 1996 for her unfair dismissal and under the Sex Discrimination (Northern Ireland) Order 1976 for her injury to feelings.  The tribunal awards interest under the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination cases) Regulations (Northern Ireland) 1996 No.581) on the award for injury to feelings.

 

Award under The Employment Rights (Northern Ireland) Order 1996

 

Basic Award

 

            1 x £298.08                                                                                        =          £   298.08

 

 Compensatory Award

 

            26 June 2015 - 4 August 2015

            Maternity benefit - (£298.08 x 0.9) = £268.27 x 6 =                               £ 1,609.62

 

            4 August 2015 - 1 December 2015

            Maternity benefit - £139.58 x 17 =                                                             £ 2,372.86

 

            Total maternity benefit                                                                     =          £ 3,982.48

 

Loss of earnings   

2 December 2015 - 10 May 2016

£259.38 x 23                                                                                                 =          £ 5,965.85    

 

Future loss of earnings   

11 May 2016 - 9 November 2016

£259.38 x 26                                                                                                 =          £ 6,743.88

                                                                                                                                    £12,709.73

 

 

Compensatory Award                                                                               =          £16,692.21

 

Loss of statutory rights                                                                                =          £    250.00

Total award for unfair dismissal                                                                            £17,240.29

 

Award under the Sex Discrimination (Northern Ireland) Order 1976

Injury to feelings                                          =          £ 7,500.00

 

Interest on the injury to feelings

26 March 2015 - 10 May 2015 @ 8% pa  =          £    660.00

 

Total injury to feelings                                             £  8,160.00    =                      £  8,160.00

 

            Total Compensation                                                                      =          £25,400.29

 

 

The prescribed period is from 23 June 2015 until 10 May 2016.

 

The prescribed element is £8,708.08 (£25,400.29-£16,692.21)

 

           

 

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

 

 

 

 

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing:  9 and 10 May 2016, Belfast

 

 

Date decision recorded in register and issued to parties: