Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2169/16

 

 

CLAIMANT: Denise Rigley

 

 

RESPONDENT: Dieci Ltd, t/a Alan Milne Tractors

 

 

DECISION

 

 

The tribunal finds:-

 

(A)       the claimant was unfairly dismissed;

 

(B)       the claimant was discriminated on the grounds of her sex;

 

(C)       the respondent breached its obligation to provide the claimant with written particulars of her employment; and

 

(D)       the tribunal makes a total award of £14,402.00.

 

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Travers

 

Members: Mr B Collins

Mr A White

 

 

Appearances:

 

The claimant was represented by Mr O'Kane of McShanes Solicitors.

 

The respondent was represented by Mr Moore of MCL Associates.

 

 

REASONS

 

Issues

 

1.             The following issues fall to be considered in this case:-

 

(i) Was there a breach of the Maternity and Paternal Leave Regulations (NI) 1999 by a denial of the claimant's right to return to her job following maternity leave?

 

(ii) Was the claimant subjected to unlawful discrimination either as a part-time worker or on the grounds of her sex?

 

(iii) Was the claimant unfairly dismissed either by unfair selection for redundancy or because the principal reason for her redundancy related to pregnancy, childbirth or maternity leave?

 

(iv) Was the respondent in breach of its obligation to provide the claimant with a written statement of particulars of employment?

 

Facts

 

2.             The respondent is a company which sells tractors under distribution agreements from manufacturers. The owners of the company are Alan Milne and his wife. They are also the owner of Ender Enterprises, a company which operates holiday parks. In evidence Mr Milne described the two businesses as 'sister' companies. The administration of the two entities is run from an office in Newry.

 

3.             In June 2015 the respondent placed a newspaper advertisement seeking an 'Accounts Administrator'. It was described as a full-time position based in the Newry office. The duties were stated to include, 'Bank Reconciliations, invoicing customers, processing purchase invoices, reconciling creditors and debtors accounts, internal auditing and other general accounts duties'. Applications were to be made by sending a CV to Mr Milne.

 

4.             The claimant is a former bank manager. When she saw the advertisement she sent in her CV and she was successful in securing an interview for the position on 11/06/15. The interview was conducted by Mr Milne and his wife, together with the company accountant Eddie Fearon. At the interview Mr Milne told the claimant that there might be two positions available, a full-time job dealing primarily with credit control and a part-time position where the emphasis was on bank reconciliations. The claimant had applied for a full-time job and she had not considered part-time working prior to this discussion at interview.

 

5.             Ultimately the claimant was happy to work part-time. On 12/06/15 she was offered and accepted the position dealing with bank reconciliations on the basis of a
25 hour working week. The detail of the days of the week and times when she was to work was agreed with Mr Fearon. This included some half-day working.

 

6.             The offer of the part-time position dealing with bank reconciliations was a matter of convenience and the claimant's personal preference. It was not a reflection on the claimant's professional abilities. She would have been equally able to perform any of the duties set out in the job advertisement. The full-time position focussed on credit control was filled by Patrick Hanna who had responded to the same advertisement as the claimant.

 

7.             At no point during her employment by the respondent was the claimant given a written statement of her terms and conditions of employment. Mr Milne acknowledges this failure with admirable candour. As he put it in evidence, 'We were aware of the need to provide a contract, we put our hands up to that'.

 

8.             The claimant discovered on 30/06/15 that she was pregnant. The next day she commenced employment with the respondent. In around August 2015 she informed Mr Fearon that she was expecting the birth of a child in February 2016.

 

9.             The claimant's employment with the respondent was a success. In evidence
Mr Milne described her as, '...a lovely girl. I have no issues with her at all. Polite, hard-working, done a good job'.

 

10.          The respect between the claimant and Mr Milne was mutual and endures. The claimant told the tribunal that, 'I liked working with him, I still like him'.

 

11.          The respondent's tractor business operated out of premises in Newry and a showroom in Carryduff. During her three working days per week, the claimant at times would work on the Newry business, the Carryduff business, and on Ender Enterprises.

 

12.          In preparation for her maternity leave, after the Christmas 2015 break the claimant trained up Mr Milne's daughter in bank reconciliations so that she could deal with that aspect of the job during the maternity leave period.

 

13.          The claimant's baby arrived 6 weeks prematurely, consequently the claimant's last day at work prior to commencing maternity leave was 14/01/16. The claimant fully intended and expected to return to work at the conclusion of her maternity leave.

 

14.          In early May 2016 Mr Hanna left his position as a full-time accounts administrator. Mr Gary McEvoy was employed by the respondent to take on the full-time position previously filled by Mr Hanna. Just as the claimant would have been able to perform the duties of that position when it was filled by Mr Hanna, so too the claimant would have been able to perform the duties of the position filled by
Mr McEvoy.

 

15.          Later in May 2016 Mr Milne received the disappointing news that one of the respondent's tractor distributorships was to be terminated. Consequently he decided that the respondent's presence in Carryduff was no longer commercially justified. On 23/05/16 the respondent gave notice to terminate the lease on the Carryduff showroom as from 30/09/16.

 

16.          Following the loss of the tractor agency in May and the decision to close the Carryduff premises, Mr Milne decided that the reduction in company turnover necessitated consideration of making the claimant redundant. The claimant was not due to return from maternity leave until September/October 2016 but Mr Milne felt that there should be no delay in consideration of redundancy because, '...it would have been wrong for her to come back to work and lose her job'.

 

17.          The claimant described the redundancy consultation letter dated 21/06/16 as coming, '...out of the blue and was a total shock to me'.

 

18.          The letter stated that, '...the Company has experienced a significant drop in turnover with the closure of our second branch and as such your position as Accounts Administrator is at risk of redundancy. We are considering all possible ways of avoiding redundancy, including any suitable alternative positions ... We must stress that we have not made any decision regarding your position ... However, if we are unable to find any alternatives then your employment may be terminated following [a redundancy consultation meeting]'.

 

19.          A redundancy consultation meeting was held with the claimant on 11/07/16. In attendance were Mr Milne and Mr Fearon. The notes of that meeting include the following: 'Alan said that after Denise went off on maternity leave on 19 January, [her] duty of bank reconciliations had been absorbed by another member of staff in a sister company. Alan also explained to Denise that her role had been taken on by the other employees within the company during their normal working week at no additional hours or cost to the company'. Mr Milne went on to explain to the claimant his concerns about the financial impact on the respondent presented by the past and potential future loss of various tractor distributorships. 'Alan said because of all of this the duties of Accounts Administrator will surely diminish even further from her current three days per week and this, he explained to Denise is why there is a risk that her role may be made redundant'.

 

20.          The notes of the consultation meeting also record that when the claimant was asked whether she had any suggestions which might enable the respondent to avoid making her redundant, 'Denise asked if there would be any work within the caravan parks Ender Enterprises Ltd which could be taken into her current role in order to keep enough work within the role to make it viable. Denise also asked if it was possible that the job could be done in reduced hours'.

 

21.          On 19/07/16 Mr Fearon informed the claimant by telephone that she would be made redundant. This was confirmed by letter dated 18/07/16 wherein Mr Milne notified the claimant that, '...we have been unable to identify a means of avoiding redundancy or to identify a suitable alternative role for you within the organisation. I regret to now inform you that your redundancy is confirmed'.

 

22.          The claimant appealed the decision to make her redundant. Her letter dated 03/08/16 included the following grounds: the claimant was on maternity leave and her position should have been protected to allow her to return; the claimant was not offered an alternative position and would have been available to work on either a part-time or full-time basis; the claimant should have been accommodated before any new member of staff and any new employee should have been taken on in a temporary position until the claimant's position had been clarified; there was still a requirement for the claimant's work to be done and the need for her work had not disappeared; the respondent had no proper redundancy policy and the claimant did not know on what basis she had been selected for redundancy.

 

23.          The appeal meeting took place on 05/08/16. In attendance were the claimant,
Mr Milne and Mr Fearon. The respondent's note of the meeting describes Mr Milne going through and rejecting each of the grounds raised by the claimant in her 03/08/16 letter. This included telling the claimant that there were no other vacancies, full or part-time available in the company and that, 'Alan said that the company followed the redundancy procedure as set out by the government and also took advice from an alternative employment specialist. Alan explained that Denise had received written notice, was invited into the office for a consultation meeting, the result of the meeting was notified to Denise in writing and Alan said to Denise that she was given the right of appeal which she was now exercising'.

 

24.          Mr Fearon subsequently informed the claimant by telephone that her appeal had been unsuccessful.

 

25.          It transpired from the evidence of Mr Milne that the claimant was in fact in a pool of one when it came to consideration of redundancy. He gave no consideration to adding to the pool the recently employed full-time accounts administrator,
Mr McEvoy. In evidence Mr Milne explained his position thus, 'Was I going to go to a man who had started work two weeks earlier and tell him that he might be made redundant and the claimant was not going to be back at work until November?'.

 

26.          One of the justifications offered by Mr Milne for this decision was a distinction he drew between the focus on credit control in Mr McEvoy's work and the focus in the claimant's work on bank reconciliation. This was an inadequate justification for the failure to consider Mr McEvoy in the pool. The original advertisement which the applicant answered was also responded to by Mr McEvoy's immediate predecessor, Mr Hanna. The claimant was called to interview on the basis of being suitably qualified to perform any of the advertised duties, including those which were ultimately undertaken by Mr Hanna. The respondent's decision to offer the claimant the position in bank reconciliation was not based on any concerns that she was not capable of doing the credit control job. The decision was based purely upon the claimant's decision to take a part-time position and the allocation of work to the
part-time position happened to be bank reconciliation rather than credit control. The claimant was fully capable of undertaking the duties in credit control performed first by Mr Hanna and latterly by Mr McEvoy.

 

27.          It is recorded in the record of a Case Management Discussion dated 08/02/17 at paragraph 1(6) that, 'Mr Moore [the respondent's representative] confirmed that this is not a case where the respondent alleges that the claimant did not have the necessary skills or aptitude to perform the role which was carried out by Mr McEvoy at the time of termination'.

 

28.          In evidence Mr Milne said, 'I have never addressed my mind as to whether she might be able to do credit control, it is not the job she was offered'. He said that he had told the claimant, 'that credit control was a full-time job'. No reasons were given to the tribunal as to why credit control had to be a full-time job.

 

29.          When addressing the question of possible alternative roles for the claimant,
Mr Milne said, 'We looked to see if there was any other job Denise could do, there was no other job Denise could do. We had Gary [McEvoy] working 5 days a week...'.

 

30.          At the redundancy consultation meeting the claimant had been asked whether she had any suggestions as to how redundancy might be avoided. When Mr Milne was asked in cross-examination what he had done to address her suggestions, he replied, 'Very simple, there was no role available, Denise had already turned down the job that Gary McEvoy was offered'. In fact the claimant had not been invited to consider applying for the position filled by Mr McEvoy when Mr Hanna left and she had not turned it down.

 

31.          In respect of the claimant's suggestion that she might undertake Enders Enterprises Ltd related work, Mr Milne said that, 'There was no role within Ender Enterprises. There was no job going within Ender Enterprises, no job to offer'.

 

32.          As noted at paragraph 19 above, Mr Milne told the claimant at the redundancy consultation meeting that the, 'duty of bank reconciliations had been absorbed by another member of staff in a sister company. Alan also explained to Denise that her role had been taken on by the other employees within the company during their normal working week at no additional hours or cost to the company'. The tribunal did not hear any evidence to suggest that Mr Milne gave serious consideration as to how the return of that reallocated work to the claimant's role might have avoided her redundancy at the conclusion of her maternity leave. Mr Milne appears to have operated on the basis that because he had found a satisfactory solution to covering the claimant's work during maternity leave that it was unnecessary to return the duties to her role when the maternity leave ended.

 

33.          Concerning the possibility that Mr McEvoy should have been considered in the redundancy consultation Mr Milne said in evidence that, 'There was no job in credit control, not even for a minute would I have considered reducing the role or sharing the role, Denise's role was going to get to the point where it was only a few hours a day. We had a guy doing a good job. How would I have went to Gary McEvoy and tell him his job was going to be reduced? That would have meant most likely that he would have left and I would have had no-one until November. What sort of position would that have put the company in? ... I live in the real world. I have an employee that has been taken on two months prior that is doing a fantastic job in credit control, a full-time job. He would have had to be taken in and told by me that he would have so many hours on the fact that Denise may be back in November for a few hours a week. I risk losing my credit controller and I have no guarantee any of my employees would be back after leave whether maternity or otherwise. I was running a business'.

 

34.          As noted at paragraph 23 above, the respondent has been anxious to insist that a proper and legally compliant process was undertaken by it in reaching the decision to make the claimant redundant and to reject her appeal against that decision. The tribunal finds that the process was one of form and not substance. It was a box ticking exercise. No evidence has been presented on behalf of the respondent to suggest that Mr Milne in conducting the process substantively engaged with the matters which such a process is intended to address. There was no written redundancy policy and the redundancy selection criteria applied remain unclear.

 

Law

 

35.          Regulation 10 of the Maternity and Parental Leave Regulations (Northern Ireland) 1999 ['MPL'] provides that:

 

'(1)...where, during an employee's maternity period it is not practicable by reason of redundancy for her employer to continue to employ her under her existing contract of employment. (2) Where there is a suitable vacancy, the employee is entitled to be offered (before the end of her employment under her existing contract) alternative employment with her employer or his successor, or an associated employer, under a new contract of employment...'.

 

The work to be done under the new contract must be of a kind which is suitable for the employee and must not be on terms which are not substantially less favourable than under the previous contract.

 

Regulation 20(1)(b) of the MPL provides that where the reason or principal reason for dismissal is that the employee has been made redundant but regulation 10 has not been complied with, the dismissed employee is entitled to be regarded as unfairly dismissed under Article 131 of The Employment Rights (NI) Order 1996 ["the ERO"].

 

Under regulations 20(1)(a) and 20(3) of the MPL, where the reason or the principal reason for dismissal is connected with the employee's pregnancy, childbirth or that she took maternity leave, the employee shall be regarded as unfairly dismissed under Article 131 of the ERO.

 

36.          Article 4 of the ERO defines "associated employer" as follows:

 

"...any two employers may be treated as associated if -

 

(a)        One is a company of which the other (directly or indirectly) has control...".

 

37.          Under Article 126 of the ERO an employee has the right not to be unfairly dismissed by his employer. Article 130 of the ERO provides that it is for the employer to show the reason or the principal reason for dismissal and redundancy can be an acceptable reason. Under Article 130(4), having regard to the reason shown for the dismissal, the fairness of the dismissal: '(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.' Article 174 of the ERO provides a definition of redundancy in the context of the ERO.

 

38.          In considering a dismissal on the grounds of redundancy, 'It is not enough to show simply that it was reasonable to dismiss an employee; it must be shown that the employer acted reasonably in treating redundancy 'as a sufficient reason for dismissing the employee,' i.e. the employee complaining of dismissal. Therefore, if the circumstances of the employer make it inevitable that some employee must be dismissed, it is still necessary to consider the means whereby the applicant was selected to be the employee dismissed and the reasonableness of the steps taken by the employer to choose the applicant, rather than some other employee, for dismissal.', per Browne-Wilkinson P in Williams v Compair [1982] ICR 156.

 

39.          The claimant's solicitor also referred the tribunal to Vokes Ltd v Bear [1974] ICR 1 where a redundancy dismissal was rendered unfair by a failure to consider the question of finding some other position in another company within the group of companies to which the employer belonged.

 

40.          In Capita Hartshead v Byard [2012] ICR 1256 at paragraph 31(d) Silber J noted that, 'The Employment Tribunal is entitled, if not obliged, to consider with care and scrutinise carefully the reasoning of the employer to determine if he has ' genuinely applied' his mind to the issue of who should be in the pool for consideration for redundancy'.

 

41.          Under regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000 a part-time worker has the right not to be treated by his employer less favourably than his employer treats a comparable full-time worker, by being subjected to any detriment by any act, or deliberate failure to act, of his employer. To contravene the regulation the employer's treatment must be on the ground that the worker is a part-time worker and the treatment must not be justified on objective grounds.

 

42.          Under Article 33 of the ERO an employer is obliged to provide a worker with a written statement of prescribed particulars of employment. Article 27 of The Employment (Northern Ireland) Order 2003 provides that where an employer has breached that obligation, a successful claimant for unfair dismissal shall receive an award of a minimum of 2 weeks and a maximum of 4 weeks pay in respect of that breach.

 

43.          Under Article 8(2)(b) of the Sex Discrimination (Northern Ireland) Order 1976 ['SDO'] it is unlawful to discriminate against a female employee by dismissing her. Under Article 5A(1)(b) of the SDO it is unlawful discrimination to treat a woman less favourably, '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'.

 

44.          Article 63A of the SDO provides that where facts are proven from which the tribunal could conclude that an act of unlawful discrimination has occurred in the absence of an adequate explanation from the respondent, then the burden of proof shifts to the respondent to demonstrate that he did not commit the act. This provision has been considered in a number of cases which follow the decision in Igen v Wong [2005] 3 All ER 812 including the decision of the Northern Ireland Court of Appeal in Nelson v Newry & Mourne [2009] NICA 03/04/09. The following principles emerge from the authorities:-

 

•          It is a two stage process. First the claimant must prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent committed the unlawful act of discrimination. Once the tribunal has so concluded the respondent has to prove on the balance of probabilities the treatment was not on the grounds of sex.

 

•          The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination.

 

•          In most cases it would be sensible for a tribunal to formally analyse a case by reference to two stages but it is not obligatory for them formally to go through each step in each case [ Laing v Manchester City Council [2006] IRLR 748 at para 73].

 

Conclusion

 

45.          Mr Milne gave compelling evidence that there was a significant downturn in the respondent's business due to the loss of some distributorships. The reduction in turnover presented Mr Milne with a set of commercial challenges which he had to resolve. In this context he decided to reduce the respondent's administrative overhead by a redundancy.

 

46.          The difficulty which is at the root of this case, is that the implementation of the procedure which the respondent adopted in respect of selection for redundancy was profoundly unfair. As noted in the findings of fact above the way in which the procedure was conducted rendered it no more than a box ticking exercise.
Mr Milne's own words reveal that he failed to approach the exercise with an open mind.

 

47.          If Mr Milne had genuinely applied his mind to the question of who should be in the redundancy pool, he would at least have given consideration to the possibility that Mr McEvoy should be included. Instead as he told the tribunal, 'not even for a minute' would he have considered reducing Mr McEvoy's duties or sharing them with the claimant. Mr Milne explained that, 'I have never addressed my mind as to whether she might be able to do credit control'.

 

48.          In considering the redundancy pool Mr Milne went on to hold against the claimant both the fact of her being a part-time worker and that she was on maternity leave and in his view 'may' not return to work at the conclusion of that leave. As noted at paragraph 33 above, Mr Milne was concerned that, 'Denise may be back in November for a few hours a week. I risk losing my credit controller and I have no guarantee any of my employees would be back after leave whether maternity or otherwise'.

 

49.          Mr Milne referred to 'leave whether maternity or otherwise'. It is clear what is meant by the reference to maternity leave, it is quite unclear what is meant by leave 'otherwise'. If taken literally, it would suggest that Mr Milne experiences a real anxiety that an employee will not return to work each time that they go on holiday or are off sick with a dose of the flu. This cannot be the case.

 

50.          The tribunal finds that at the heart of Mr Milne's comment was an expression of concern that the claimant, as a new mother, may decide not to return to work at the end of her maternity leave. If such a concern was a legitimate reason for disadvantaging an employee, it would render worthless the legislative protection against discrimination arising from the exercise of the right to pregnancy and maternity leave.

 

51.          The respondent's note of the redundancy consultation meeting is telling. It records that, 'Alan also explained to Denise that her role had been taken on by the other employees within the company during their normal working week at no additional hours or cost to the company'.

 

52.          Having found a convenient way to cover the claimant's work, Mr Milne failed to bear in mind the reason why he had had to find that cover, namely the claimant's pregnancy and her maternity leave. The cover should have been regarded as temporary. It is clear that the entirety of the duties covered by the claimant did not disappear with the downturn in business. Her entire role was not entirely redundant, it was just that someone else was covering what remained of it.

 

53.          Mr Milne did not consider whether he should include any of the people who were covering the claimant's duties in the redundancy pool. Although some of the claimant's work was being covered by an employee of a 'sister company', Mr Milne gave no consideration as to whether any employee of that associated company should be included in the redundancy pool. The claimant was disadvantaged in the redundancy selection process by reason of being on maternity leave.

 

54.          No coherent criteria can be discerned in the selection of the redundancy pool other than the fact that the claimant was on maternity leave and that she worked part-time. It was inevitable that she would end up in a redundancy pool of one.

 

55.          In all the circumstances the dismissal was unfair.

 

56.          The tribunal also finds that the claimant was discriminated against on the grounds of sex by reason of exercising her statutory right to maternity leave. Had she not been on maternity leave Mr Milne would not have taken into account his perception that he had, 'no guarantee any of my employees would be back after leave whether maternity or otherwise'.

 

57.          The claimant's solicitor invites the tribunal to find that the burden of proof has shifted to the respondent in respect of the discrimination claim by reason of the facts that:-

 

(A) the redundancy took place when the claimant was on maternity leave;

 

(B) given that at the date of redundancy the claimant was not in receipt of any income from the respondent and she was not due to return to work for some months, there was no pressing commercial need to make the claimant redundant at that time. The decision could have been put back in order to see how trading developed and to consider whether the claimant's position could be preserved in the company without impacting too adversely on Mr McEvoy.

 

58.          The tribunal accepts the claimant's submission in support of the argument that the burden of proof has shifted to the respondent. The tribunal also finds that this is a case where taking account of the entirety of the evidence, including that of the claimant, a two stage analysis is not essential in any event.

 

59.          The respondent has failed to satisfy the tribunal on the balance of probabilities that the treatment of the claimant was not on the grounds of her sex. Mr Milne's evidence clearly indicates that the claimant was treated less favourably in the redundancy selection process both by reason of being on maternity leave at the time, and by reason of Mr Milne's concern that she might not return from her maternity leave.

 

60.          Mr Milne told the tribunal with passion that he did not discriminate against the claimant. He referred to being the father of children and married to a wife who has previously worked for other people. In effect he was telling the tribunal that he is not the sort of person who would consciously disadvantage anyone on the grounds of their sex.

 

61.          An intention to discriminate is not an essential component of unlawful discrimination. The tribunal accepts that Mr Milne did not consciously set out to discriminate against the claimant on the grounds of her sex. Unfortunately as events unfolded, Mr Milne's actions in fact amounted to unlawful discrimination.

 

Remedy

 

62.          In reaching its conclusions as to remedy, the tribunal has applied Article 152 of the ERO which sets out the basis upon which awards are to be calculated in respect of unfair dismissal.

 

63.          It is agreed that the claimant's basic pay was £208.00 per week. The claimant was
37 years of age at the date of the dismissal. She had one year of completed service. The basic award in respect of the unfair dismissal is £208.00.

 

64.          The claimant was dismissed on 18 July 2016. She was however due to be on maternity leave until 13 October 2016 consequently the claimant makes no claim for compensation for loss of earnings up to and including that date.

 

65.          The claimant has made efforts to find work since she was dismissed. Thus far she has been unsuccessful. She provided a copy of the record of her job hunting endeavours. Prior to the tribunal hearing she had made 7 or 8 applications for employment. One was in respect of a lecturing job in business administration, the other applications were for jobs where her accounting technician qualification would be utilised. In fact the claimant had qualified as an accounting technician relatively recently and with only six months experience in the field she acknowledged that her lack of experience disqualified her from applying for a lot of the accounting technician jobs. The claimant is a person of ability who has acquired general business and administrative experience from her previous life as a bank manager. She could have extended the prospects of finding employment had she applied for more jobs which fall outside the narrow accounting technician field. In the circumstances the tribunal makes an award for loss of earnings for a period of
9 months or 39 weeks from 14 October 2016 at £208.00 per week. This amounts to £8,112.00. The element of the loss of earnings claim which is referable to the period between dismissal and the conclusion of the tribunal hearing on
25 May 2017 is £6,448.00.

 

66.          Over the period of 26 completed weeks from 14/10/16 until 20/04/17 the claimant received £73.10 per week job seekers allowance. This totalled £1,900.60.

 

67.          An award of £250.00 is made in respect of loss of statutory rights.

 

68.          Mr Milne acknowledged that he was aware of the requirement to provide written particulars of employment, nonetheless he did not do so. In all the circumstances the tribunal awards the maximum of four weeks' pay. It is agreed that the claimant's weekly pay was £208. The total awarded in respect of this aspect of the claim is therefore £832.00.

 

69.          Following the finding of discrimination on the grounds of sex the claimant is entitled to an award in respect of injury to her feelings. The tribunal has considered the guidelines in Vento v The Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 as updated in Da Bell v NSPCC UKEAT/0227/09 . In closing submissions Mr O'Kane sought an award towards the lower end of the middle bracket of guideline award which runs from £6,000.00 to £18,000.00.

 

70.          An award for injury to feelings is a compensatory award which must be rooted in the evidence. Little evidence was given by the claimant directly about this aspect of the case. In her witness statement she described the news of possible redundancy as coming, 'out of the blue'. Unquestionably this was a difficult and anxious time for the claimant, made worse by an understandable sense of unfairness at the way in which she had been treated. The tribunal listened with care to her evidence and was impressed by her open and honest acknowledgement that she liked working with Mr Milne and that she still likes him.

 

71.          In all the circumstances the tribunal has decided that an award towards the top end of the lower bracket under Da Bell is merited. The tribunal awards the claimant £5,000.00 in respect of injury to feelings.

 

72.          The total monetary award to the claimant is £14,402.00. It is made up as follows:-

 

Unfair dismissal

Basic award £ 208.00

 

Loss of earnings £8,112.00

Loss of statutory rights £ 250.00

 

Failure to provide written particulars

Four weeks at £208 per week £ 832.00

 

Injury to feelings £5,000.00

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

 

74.          The Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996, as amended; The Social Security (Miscellaneous Amendments No. 6) Regulations (Northern Ireland) 2010 apply to this decision.

 

Recoupment Notice

 

(a) Monetary Award £14,402.00

(b) Prescribed Element £ 6,448.00

 

(c) Period to which (b) relates: 18 July 2016

to 25 May 2017

 

(d) Excess of (a) over (b) £ 7,954.00

 

 

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 23, 24 & 25 May 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: