Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

 

CASE REFS: 2803/17IT

3075/17IT

 

 

 

CLAIMANT: Finvola McMullan

 

 

RESPONDENTS: 1. Kian Lee T/A China Garden

2. A Best Rice Ltd T/A China Garden

 

 

 

DECISION

 

 

The unanimous decision of the tribunal is that:

 

1.             The respondents failed to pay the claimant the appropriate amount of holiday pay. The respondents are ordered to pay to the claimant the sum of £755.93.

 

2.             The respondents unlawfully deducted wages from the claimant. The respondents are ordered to pay to the claimant the sum of £300.

 

3.             The respondents failed to provide the claimant with a written statement of the particulars of her employment. The respondents are ordered to pay to the claimant the sum of £570.

 

4.             The respondents discriminated against the claimant on the grounds of her gender. The respondents are ordered to pay to the claimant the sum of £18,000 for injury to feelings.

 

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Browne

 

Panel members: Mr T Carlin

Mr N Jones

 

 

Appearances:

 

The claimant was represented by Ms F Smith of Donnelly and Kinder, Solicitors.

 

The respondents did not appear and were unrepresented.

 

 

 

 

ISSUES AND EVIDENCE

 

1.             The respondents did not appear at the hearing, although the tribunal is satisfied that they received notification of these proceedings; they had not instructed anyone to represent them or to appear on their behalf, and they had not contacted the tribunal or the claimant or her representatives seeking an adjournment. The tribunal therefore considered it appropriate to proceed to deal with the case in their absence.

 

2.             The claimant's evidence and written assertions were unchallenged. Whilst she was required to give only very limited oral evidence, the tribunal found her to be a credible and compelling witness. The second named respondent has not entered a response, in time or at all.

 

3.             The tribunal unanimously found from the unchallenged evidence of the claimant that:

 

4.             The claimant had worked for the respondent businesses, both owned by Mr Kian Lee, since mid-August 2013 at their Chinese takeaway business. She never received a written contract of employment.

 

5.             Initially, she worked 39 hours per week until September 2015. The claimant varied her hours by agreement with the respondents, so that she did not have to work on Saturdays, so that she could assist her mother, who was suffering from the after-effects of a stroke.

 

6.             In August 2017, the claimant suffered a miscarriage, taking just three days off work, for which she organised alternative cover. Mr Kian Lee knew that she had suffered the miscarriage.

 

7.             In January 2016, the claimant requested copy pay slips, which incorrectly showed that she worked twenty hours per week. At the same time, she was told by Mr Kian Lee that if he had to pay her holiday pay, he would let her go (that is, dismiss her). Up to that time, the claimant was never paid if she took a day off. The only holiday pay received by the claimant was for three days in February 2017, after she had asked for paid leave.

 

8.             On 2 March 2017, the claimant told Kian Lee that she was pregnant again, to which he replied "Are you serious? ..... how long is it before you can lose it?" When the claimant asked him what he meant, he repeated his question about losing it, which, in light of her previous miscarriage, known about by Kian Lee, made the claimant feel extremely uncomfortable.

 

9.             Within days, Kian Lee's behaviour towards the claimant deteriorated, becoming verbally aggressive, insisting that she now work on a Saturday, despite their agreement in that regard.

 

10.          From then on, Kian Lee continued to be aggressive towards the claimant, at one time snapping dockets out of her hand; he also told her that she had no contracted hours, and that he was reducing her work to one night per week. The claimant discovered that, despite the unilateral and arbitrary reduction in her hours, Kian Lee was advertising for new staff.

 

11.          The claimant felt that Kian Lee was trying to force her out of her job due to her pregnancy, and she raised a grievance, but Kian Lee claimed at the first meeting that he was not the owner, just the manager. He gave her the name of the purported owner, of whom the claimant had never heard. When she wrote to that person, she received no reply, and a second meeting never took place.

 

12.          It is of note that in relation to claim reference 2803/17, only the first respondent entered an appearance, stating that the claimant was not employed by him but by A Best Rice Ltd; it also stated that the claimant was only employed and paid for twenty hours per week, not forty. Neither respondent entered a response to claim number 3075/17.

 

13.          The claimant felt under so much stress that she feared for the safety of her unborn child, and obtained a sick line. The claimant contacted Kian Lee because the respondents were not paying her statutory sick pay. He told her that she was not entitled to it because her earnings were zero; DHSS advised the claimant that the respondents had never filled in the required form to say why they were not paying statutory sick pay, and they therefore were obliged to pay her, but they did not do so until August 2017, due to the claimant's persistence.

 

14.          When the time came for the claimant's maternity leave to start in July 2017, she attempted unsuccessfully on a number of occasions to arrange for Kian Lee to pay her maternity pay. The combination of not having any money coming in and anxiety about the impending birth of her baby caused the claimant significant stress, not least because she previously had had a miscarriage.

 

15.          Whilst the claimant's evidence as to the acts alleged to constitute discrimination on the grounds of her gender was unchallenged, and were accepted by the tribunal as having occurred, the tribunal had to be satisfied that those acts in fact amounted to discrimination.

 

THE LAW

 

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

 

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

 

(a) at a time in a protected period, and on the ground of the women's pregnancy, the person treats her less favourably".

 

17.          The tribunal was mindful that the amendment to Article 5A of the Order does not require a comparator.

 

18.          Article 70C of the Employment Rights (Northern Ireland) Order 1996 ('the 1996 Order') provides as follows:-

 

"(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done for a prescribed reason.

 

(2) A prescribed reason is one which is prescribed by Regulations made by the Department and which relates to -

 

(a) pregnancy, childbirth or maternity,

 

(b) ordinary, compulsory or additional maternity leave."

 

Burden of proof Regulations

 

19.          Article 63A of the Order states:-

 

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

 

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

 

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

 

20.          In Igen Ltd (formerly Leeds Carers Guidance) and Others v Wong, Chamberlains Solicitors and Another v Emokpae ; and Brunel University v Webster [2006] IRLR 258, the Court of Appeal in England and Wales set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race and disability discrimination. This guidance is now set out at Annex to the judgment in the Igen case. The guidance is not reproduced but has been taken fully into account.

 

21.          The tribunal also considered the following authorities, McDonagh and Others v Hamilton Thom Trading As The Royal Hotel, Dungannon [2007] NICA, Madarassy v Nomura International Plc [2007] IRLR 246 ("Madarassy"), Laing v Manchester City Council [2006] IRLR 748 and Mohmed v West Coast Trains Ltd [2006] UK EAT 0682053008. It is clear from these authorities that in deciding whether a claimant has proved facts from which the tribunal could conclude in the absence of an adequate explanation that discrimination had occurred, the tribunal must consider evidence adduced by both the claimant and the respondent, putting to the one side the employer's explanation for the treatment. As Lord Justice Mummery stated in Madarassy at paragraphs 56 and 57:-

 

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

 

'Could conclude' in s.63A(2) must mean that 'a reasonable tribunal could properly conclude' from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory "absence of an adequate explanation" at this stage..., the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by s.5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment."

 

22.          The tribunal received valuable assistance from Mr Justice Elias' judgement in the case of London Borough of Islington v Ladele & Liberty (EAT) [2009] IRLR 154, at paragraphs 40 and 41. These paragraphs as set out in full to give the full context of this part of his judgement ( even though Article 5A of the Order no longer requires a comparator in a case involving pregnancy.):

 

"Whilst the basic principles are not difficult to state, there has been extensive case law seeking to assist tribunals in determining whether direct discrimination has occurred. The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities:

 

(1) In every case the tribunal has to determine the reason why the claimant was treated as he was. As Lord Nicholls put it in Nagarajan v London Regional Transport [1999] IRLR 572, 575 - 'this is the crucial question'. He also observed that in most cases this will call for some consideration of the mental processes (conscious or sub-conscious) of the alleged discriminator.

 

(2) If the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.576) as explained by Peter Gibson LJ in Igen v Wong [2005] IRLR 258, paragraph 37.

 

(3) As the courts have regularly recognised, direct evidence of discrimination is rare and tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC). These are set out in Igen v Wong. That case sets out guidelines in considerable detail, touching on numerous peripheral issues. Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is. The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature. The first stage places a burden on the claimant to establish a prima facie case of discrimination:-

 

'Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer.'

 

If the claimant proves such facts then the second stage is engaged. At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground. If he fails to establish that, the tribunal must find that there is discrimination. (The English law in existence prior to the Burden of Proof Directive reflected these principles save that it laid down that where the prima facie case of discrimination was established it was open to a tribunal to infer that there was discrimination if the employer did not provide a satisfactory non-discriminatory explanation, whereas the Directive requires that such an inference must be made in those circumstances: see the judgment of Neill LJ in the Court of Appeal in King v The Great Britain-China Centre [1991] IRLR 513.)

 

(4) The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably. That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee. So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one. As Lord Browne-Wilkinson pointed out in Zafar v Glasgow City Council [1997] IRLR 229:-

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

 

Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl v Law Society [2004] IRLR 799, paragraphs 100, 101 and if the employer fails to provide a non-discriminatory explanation for the unreasonable treatment, then the inference of discrimination must be drawn. As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself - or at least not simply from that fact - but from the failure to provide a non-discriminatory explanation for it. But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.

 

(5) It is not necessary in every case for a tribunal to go through the two-stage procedure. In some cases it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test: see the decision of the Court of Appeal in Brown v Croydon LBC [2007] IRLR 259 paragraphs 28-39. The employee is not prejudiced by that approach because in effect the tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.

 

(6) It is incumbent on a tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya v University of Oxford [2001] IRLR 377 esp paragraph 10."

 

23.          The tribunal also received considerable assistance from the judgment of Lord Justice Girvan in the Northern Ireland Court of Appeal decision in Stephen William Nelson v Newry and Mourne District Council [2009] NICA 24. Referring to the Madarassy decision (supra) he states at paragraph 24 of his judgment:-

 

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

 

24.          The burden of proof in sex discrimination cases is set out in Article 63A of the 1976 Order. It is the claimant's responsibility to prove facts from which the tribunal could conclude, in the absence of an adequate alternative explanation, that the respondent's treatment of the claimant was on grounds of her gender.

 

25.          Once facts have been established from which discrimination could be inferred, the burden shifts to the respondent to show that there is another explanation for the treatment. It is clear that a difference in status is not enough to establish the inference of discrimination ( Madarassy  v Nomura International Plc [2007] IRLR 246). Especially since the ruling of the House of Lords in Shamoon  v Chief Constable of the RUC [2003] IRLR 285 HL, there has been a movement towards treating the question of whether less favourable treatment was on the proscribed ground  - the "reason why" issue  - as the crucial question for tribunals to address ( Aylott  v Stockton on Tees Borough Council [2010] IRWR 994 CA; JP  Morgan Europe Ltd    v Chweidan [2011] EWCA Civ  648 ) rather than focusing on the characteristics of actual or hypothetical comparators. As put by Mummery LJ in Aylott, "Did the claimant, on the proscribed ground, receive less favourable treatment than others?"

 

26.          The provisions of Article 5A of the 1976 Order do not require an identifiable or hypothetical comparator.

 

27.          The tribunal is unanimously satisfied from the evidence that the claimant has established facts from which discrimination could be inferred. The evidence as to the timing of Kian Lee's change of attitude towards the claimant, namely: when she told him she was pregnant again; the action he took in his aggression and comment about "losing" it; the severe reduction of her hours; and the failure to pay her sickness benefit and her maternity pay, give rise to a clear and compelling inference that the claimant was being punished for causing inconvenience by being pregnant.

 

28.          In light of the respondents' failure to engage in the tribunal process, no explanation has been forthcoming. The only points raised by the respondents in their defence to case reference 2803/17 were the identity of the claimant's employer and the number of hours she worked. At no time did the respondents dispute the allegation of less favourable treatment on the grounds of gender.

 

29.          The tribunal therefore finds that, in the absence of any explanation, and, taking account of the compelling inferences raised by the claimant's uncontradicted evidence, the respondents treated the claimant less favourably because she was pregnant.

 

30.          The tribunal is also satisfied that the other claims regarding holiday pay, unlawful deduction from wages and failure to provide a written statement of particulars are also made out. The tribunal considers that, apart from the unlawful deduction of wages, there is insufficient evidence to conclude that such failures on the part of the respondents were discriminatory, or as a detriment within the scope of Article 70 C of the 1996 Order. The tribunal considers that the appropriate remedies for all of these, including the unlawful deduction of wages, are contained in the claimant's schedule of loss, which is appended to, and adopted in, this decision.

 

31.          As regards the discrimination claim, the tribunal adopts the range of injury to personal feelings from the guidelines in Vento. The appropriate band in this case is the middle range, but the tribunal considers that the treatment of the claimant by the respondents was vindictive and callous. She was humiliated over a period of time; Kian Lee's indifference to her around the loss of her first baby was compounded in this case by his expressed wish that she would "lose" her second child, and is viewed by the tribunal as shockingly cruel.

32.          That situation was made even worse by the fact that Kian Lee by his actions on behalf of the other respondents in effect also left the claimant without an income, namely, by cutting her hours to one day per week, and then failing to pay to the claimant her statutory sick pay and her maternity benefit.

33.          The tribunal considers that his actions were not simply poor organisation, but deliberate. The tribunal feels therefore that this conduct places the case at the top of the middle Vento band, and the respondents are ordered to pay to the claimant the sum of £18,000, in addition to the other heads of claim.

 

34.          This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990; and the Industrial Tribunals Interest in Awards in Sex and Disability Discrimination Cases (Regulations) (Northern Ireland) 1996.

 

 

Employment Judge:

 

 

Date and place of hearing: 31 January 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: