Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2891/17

 

 

 

CLAIMANT: Kathy Orr

 

 

RESPONDENTS: 1. Kelly Hylands, t/a Infiniti Hair & Beauty

2. Rod Hylands

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and her dismissal was an act of unlawful discrimination on grounds of her pregnancy. The claimant is also entitled to compensation for unpaid holiday pay. The claimant is therefore awarded the sum of £14,901.00 in compensation as set out in this decision.

 

Constitution of Tribunal:

Employment Judge: Employment Judge Murray

Members: Mrs M J McReynolds

Mr J Smyth

 

Appearances:

 

The claimant was represented by Mr Quigley, Barrister-at-Law, instructed by
Emmet J. Kelly Solicitors.

The respondents represented themselves.

 

THE CLAIM

 

1. The claimant claimed the following;

 

(1) That she was automatically unfairly dismissed in breach of the Statutory Dismissal Procures (SDP);

 

(2) That she was substantively unfairly dismissed;

 

(3) That the reason for her dismissal related to her pregnancy and was thus a discriminatory dismissal and unlawful;

 

(4) That she was owed holiday pay;

 

(5) That she was owed notice pay.

 

SOURCES OF EVIDENCE

 

2. The tribunal had regard to the claim and response forms and the documentation to which it was referred. The tribunal heard evidence from Mr and Mrs Hylands on their own behalf. The tribunal also heard evidence from the claimant and from her witness Ms Kirsty Orr who was in attendance under a Witness Order.

 

THE ISSUES

 

3. The issues for the tribunal were therefore as follows:

 

(1) Were there breaches of the SDP which rendered the dismissal an automatic unfair dismissal?

 

(2) Was the claimant dismissed on grounds of redundancy or was it in relation to her pregnancy?

 

(3) Did Kelly Hylands know that the claimant was pregnant before she dismissed her?

 

(4) Was the claimant owed holiday pay? The parties agreed that the sum involved in relation to this claim was £755.55. This was an unlawful deduction from wages claim as well as a claim under the Working Time Regulations.

 

THE LAW

 

4. Discrimination on grounds of pregnancy is rendered unlawful by Article 5A of the Sex Discrimination (Northern Ireland) Order 1976 as amended. That Article states as follows:

 

"Discrimination on the ground of pregnancy or maternity leave

N.I.

5A -”(1) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if-”

 

(a) at a time in a protected period, and on the ground of the woman's pregnancy, the person treats her less favourably; or

 

(b) on the ground that the woman is exercising or seeking to exercise, or has exercised or sought to exercise, a statutory right to maternity leave, the person treats her less favourably.

 

(2) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if, on the ground that Article 104(1) of the Employment Rights (Northern Ireland) Order 1996 (compulsory maternity leave) has to be complied with in respect of the woman, he treats her less favourably.

 

(3) For the purposes of paragraph (1)-”

 

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

 

(i) if she is entitled to ordinary but not additional maternity leave in connection with the pregnancy, the protected period ends at the end of her period of ordinary maternity leave connected with the pregnancy or, if earlier, when she returns to work after the end of her pregnancy;

 

(ii) if she is entitled to ordinary and additional maternity leave in connection with the pregnancy, the protected period ends at the end of her period of additional maternity leave connected with the pregnancy or, if earlier, when she returns to work after the end of her pregnancy;

 

(iii) if she is not entitled to ordinary maternity leave in respect of the pregnancy, the protected period ends at the end of the 2 weeks beginning with the end of the pregnancy;

 

(b) where a person's treatment of a woman is on grounds of illness suffered by the woman as a consequence of a pregnancy of hers, that treatment is to be taken to be on the ground of the pregnancy;

 

(c) a "statutory right to maternity leave" means a right conferred by Article 103(1) or 105(1) of the Employment Rights (Northern Ireland) Order 1996 (ordinary and additional maternity leave).

 

(4) In paragraph 3 "ordinary maternity leave" and "additional maternity leave" shall be construed in accordance with Articles 103 and 105 of the Employment Rights (Northern Ireland) Order 1996.

 

(5) Paragraphs (1) and (2) apply to-”

 

(a) any provision of Part III, and

 

(b) any provision of Part IV, so far as it applies to vocational training ".

 

5. The Statutory Dismissal Procedure (SDP) stipulates that an employer wishing to dismiss an employee must follow a three step procedure. Failure to follow the procedure renders a dismissal automatically unfair and must normally result in an uplift to the compensatory award of between 10% and 50%. The three-step procedure stipulates that an employer must send a letter to an employee warning that they are at risk of dismissal and inviting them to a meeting. The meeting must take place on reasonable notice. The dismissal letter must state that the employee has the right of appeal and the employee is entitled to exercise that right at a further meeting.

 

6. The claim for holiday pay is under the Working Time Regulations and under the Unlawful Deduction from Wages legislation. Holidays continue to accrue during maternity leave.

 

7. Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 (as amended) (ERO) an employee has the right not to be unfairly dismissed. The initial burden is on the employer to show that an employee was dismissed for one of the potentially fair reasons for dismissal, one of which is redundancy. If the employer proves the reason, then it is for the tribunal to decide whether or not the dismissal was fair.

 

8. In the discrimination claim the initial burden is on the claimant to prove facts from which the tribunal could conclude that an act of less favourable treatment on grounds of her pregnancy has occurred. If the claimant proves such facts the burden shifts to the employer to provide an explanation which is untainted by discrimination.

 

FINDINGS OF FACT AND CONCLUSIONS

 

9. The tribunal considered all the evidence both oral and documentary to find the following facts proved on a balance of probabilities. The tribunal then applied the legal principles to the facts found in order to reach the following conclusions.

 

10. Credibility was at the heart of this case, given that there were several key issues on which each side gave entirely different accounts.

 

11. We found the evidence of Ms Kirsty Orr particularly compelling and credible. She was clearly a reluctant witness but when she came to give evidence, she gave her evidence in a very clear and consistent fashion and provided documentation which supported her version of events.

 

12. In contrast, we found the evidence of Mrs Hylands to be inconsistent, contradictory and implausible in several respects. For this reason where there was conflict in the evidence between Mrs Hylands and others, we preferred the evidence of the claimant and her witness.

 

13. The claimant worked as a hair stylist in the respondents' hair and beauty business in Waringstown.

 

14. The claimant went on maternity leave in June 2016, had her baby in July 2016 and she was due to return to work on 27 March 2017.

 

15. On 1 March 2017 the claimant and Mrs Hylands met for coffee in a coffee shop in Dromore where the discussion was about the claimant's return to work and the hours that she would work. Mrs Hylands did not know at that point that the claimant was pregnant again. No agreement was reached on the claimant's pattern when she would return to work. The claimant's pattern of work before she left on maternity leave was that she worked two days a week earning £115.20. Her daily rate was therefore £57.60.

 

16. It was common case that the premises of the business in Waringstown were in a poor structural condition and Mrs Hylands gave evidence that for that reason she was actively looking for other premises. Mr Hylands was in the process of setting up a hairdressers and barber's shop in Dromore.

 

17. We assessed all of the evidence produced to us in relation to whether or not the first and second respondents were working in partnership or whether in reality it was Mrs Hylands' business. We are satisfied that Mr and Mrs Hylands were in business together in the business in Waringstown and subsequently in the business in Dromore.

 

18. We find that the following is the relevant chronology of events.

 

19. Mrs Hylands became aware that the claimant was pregnant again when she was told this by Kirsty Orr in early March, that is, after the meeting Mrs Hylands had with the claimant in the coffee shop. We accept Kirsty Orr's evidence which was that Mrs Hylands' response was that she was worried about how she would pay the claimant for a second maternity leave and that she therefore decided to make the claimant redundant in order to avoid this. We accept Kirsty Orr's evidence that Mrs Hylands concocted a redundancy situation and pretended that both women would be made redundant when, in reality, the business was moving to new premises in Dromore and would continue as normal with Kirsty Orr continuing as an employee.

 

20. We accept Kirsty Orr's evidence which was that she felt that she had to play along with the proposal of Mrs Hylands about the sham redundancy and Kirsty Orr did this for various reasons, one of which was that she had two children and was fearful that she would lose her job.

 

21. We find that the business moved from premises in Waringstown to premises in Dromore and that that business continued largely unchanged except for the fact that the claimant had been dismissed ostensibly for redundancy. We reject the respondents' case that the business in Waringstown closed down and that this created the redundancy situation. We reject their evidence that it was because there were financial pressures and structural problems that the claimant was made redundant. We note in this regard that the claimant was a more senior and longer serving member of staff than Kirsty Orr so, if it had been a true redundancy situation, we would have expected some assessment of whether or not Kirsty Orr should be made redundant in place of the claimant.

 

22. Having assessed all the circumstances, we are satisfied that the real reason for the termination of the claimant's employment was because she was pregnant.

 

23. Immediately after the meeting on 1 March 2017 in the coffee shop, Mrs Hylands took the claimant in to look at the new premises which were close to the coffee shop. We reject Mrs Hylands' evidence which was that she just happened to bring the claimant in to see her husband's new business. We find as a fact that the Waringstown business was in the process of moving to those new premises. At that stage on 1 March 2017 there was no indication that the claimant was likely to be made redundant or that there would be any issue about her returning to work as an employee.

 

24. On 5 March 2017, the claimant was informed on the telephone by Mrs Hylands that she would have to become self-employed by renting a chair in the new premises rather than returning as an employee. It was at that point that the claimant was told that she was redundant.

 

25. The claimant sought advice from a CAB about her rights on 7 March 2017 and after that meeting she called in to the salon in Waringstown. We accept the claimant's account which was that she attended the salon that day by chance and not by invitation to a meeting. In the event a meeting took place whereby Mrs Hylands told both the claimant and Kirsty Orr that they were being made redundant.

 

26. Letters of termination on grounds of redundancy were sent to both the claimant and Kirsty Orr by email on 8 March 2017. The cover sheet of the email sent to Kirsty Orr makes clear the true intentions of Mrs Hylands in the following respects. That document was produced by Kirsty Orr when she attended at tribunal and was a key document supporting her evidence. The cover sheet of the email states as follows:

 

"Termination of employment; ;-)

 

Hi Kirsty

 

This is a copy of what your redundancy letter would look like xx".

(Emphasis added)

 

27. Both Mrs Hylands and Kirsty Orr stated in evidence that the emoticon indicated a winking face. Mrs Hylands' evidence was that the winking face was inserted to show that she was just being friendly. We reject that evidence as we find it entirely implausible that that would be inserted in a real redundancy letter. We also accept the evidence of Kirsty Orr that the winking face meant that it was not to be taken seriously. This is borne out by the sentence on the cover sheet which underlines that the attached letter was not to be taken seriously. We reject Mrs Hylands' evidence which was that she simply phrased the cover sheet in that way in error.

 

28. We specifically reject Mrs Hylands' account which was that she only took Kirsty Orr as an employee for a maximum of three months because she begged her to. We reject that, firstly, because we have grave doubts about the veracity of Mrs Hylands' evidence and, secondly, the period of employment lasted for over three months until Kirsty Orr left of her own accord. We also accept entirely Kirsty Orr's account of what happened given our assessment of her as a witness.

 

29. In summary we accept the account given by Kirsty Orr which was that she was not to take seriously the termination letter as things were to continue as they had before. This is what actually happened in that she moved to the new premises and continued to work as an employee until she resigned when she got another job.

 

30. The letter to the claimant stated as follows:

 

"Dear Kathy

 

Termination of your employment by reason of redundancy

 

The purpose of this letter is to confirm the outcome of a recent review by
Kelly Hylands and Infiniti Hair and Beauty (the employer) of its operational requirements, and what this means for you.

 

As a result of closure of the business the position of an employee hair stylist is no longer needed. Regrettably this means your employment will terminate. This decision is not a reflection on your performance.

 

Based on your length of service, your notice period is three weeks. Therefore your employment will end on 29 ^th March 2017.

 

Due to your employment ending because of redundancy, you will be paid redundancy pay of £230.40 in accordance with National Employment Standards. This amount represents two weeks' pay which is based on your two years and 6 months of service.

 

Thank you for your valuable contribution during your employment with me. Please contact me if you wish to obtain a reference in the future.

 

Yours sincerely

 

Kelly Hylands

Infiniti Hair & Beauty"

 

31. In the event the claimant's employment terminated on 22 March 2017.

 

32. The letter of redundancy was sent to Kirsty Orr in order to make it look as if there was a redundancy which applied to both women. In reality it was only the claimant who was dismissed and we find that this happened because of her pregnancy.

 

33. Mr and Mrs Hylands put forward the following reason for the claimant making her claim and for Kirsty Orr supporting that claim. The reason given was that they believed that the claimant was paying Kirsty Orr to be a witness. Whilst they made this serious allegation they had absolutely no foundation for making it. We entirely reject that allegation primarily because if it had been true Kirsty Orr would have been an enthusiastic witness and participant in these proceedings. As it was she had to be summonsed to give evidence. When she gave evidence at the tribunal we assessed her to be a credible and honest witness.

 

34. The claimant's dismissal was automatically unfair because it was in breach of the statutory dismissal procedures. Prior to the dismissal the respondents confirmed that they had sought advice generally from the LRA and this shows that they knew that there were sources of advice for them in relation to their employees. The breaches of the procedure were very serious in that there was no notice given to the claimant, nothing was in writing and she was not told of the right of appeal. The meeting that did take place took place by chance rather than by invitation. In summary we regard this as a very serious breach of the SDP and in the circumstances have decided that it warrants a 50% uplift to the compensatory award.

 

35. We find that the dismissal was substantively unfair in that we do not accept that redundancy was the reason for dismissal. The procedural defects referred to above were clear procedural defects in a substantive unfair dismissal claim.

 

36. As set out above we find that Mrs Hylands knew that the claimant was pregnant again and then set about getting rid of her so that she did not have to pay statutory maternity pay for a second period. She then concocted a sham redundancy in order to bring this about. The termination of the claimant's employment was therefore related: to her pregnancy; to the fact that she was still on maternity leave; and to the fact that she was going to take maternity leave in the future in relation to her second pregnancy. We are therefore entirely satisfied that the reason for the dismissal was related to pregnancy and/or maternity leave and was therefore discriminatory.

 

37. The holiday pay claim was disputed on the basis that it was agreed by the parties that the claimant had worked several days during her maternity leave over the Christmas period. The agreement that the parties came to for that period of work was that she would work on a commission basis and was paid for the hours that she worked on that basis. We reject entirely the respondents' case which was that this related to her using her holiday pay entitlement for the simple fact that the sum paid to the claimant for that period related to the work she carried out on those days and was not related to her holidays. We therefore award the agreed figure for holiday pay in the sum of £755.55.

 

Compensation

 

38. The claimant is entitled to compensation for her dismissal which was an act of discrimination. She is therefore entitled to the basic award and for her loss of earnings as set out below. The effective date of termination (EDT) is 22 March 2017. The claimant's gross weekly wages were £115.20 per week and this was also her net figure.

 

39. If the claimant had not been dismissed she would have returned from her maternity leave on 27 March 2017 and would have worked until the beginning of her next maternity leave. She therefore lost her earnings at the rate of £115.20 net per week for that period.

 

40. The claimant's schedule of loss assumed that the second maternity period started on 19 September 2017 being the date of birth of the claimant's second child. The claimant claimed loss of earnings at the maternity pay rate for a period of one year from the date of birth of her second child. That means that the maternity leave period would have expired in September 2018.

 

41. We must assess what is just and equitable to award in relation to loss of earnings. We note that the claimant intended to return to work in March 2017 which was eight months after her first baby's birth. No reason was given to us as to why the claimant claimed a period of one year following her second baby's birth. We note that the claimant is a hairdresser and that that job carries with it a level of flexibility and portability that does not necessarily apply to other jobs.

 

42. We accept to some extent the claimant's point which was that, as she was sacked when she was 16 weeks' pregnant, it made it very difficult for her to find another job. We note however that the claimant was able to work until shortly before her first baby's birth. For this reason we award loss of earnings at the net earnings rate from the date of dismissal to the date of the birth of her second baby but in relation to loss thereafter we have decided to award six months' loss of earnings at the maternity pay rate.

 

43. We award £500.00 for loss of statutory industrial rights.

 

44. The basic award calculation is as follows: £115.20 x 1 x 2 = £230.40.

 

45. The loss between the date of termination on 22 March 2017 and the date of hearing is as follows:

 

22/3/17 to 19/9/17 - 25 weeks @ £115.20 = £2,880.00.

 

19/9/17 to 27/2/18 - 23 weeks @ £103.70 = £2,385.10.

 

45. The loss from the date of hearing to the end of the six months which we have awarded means that the claimant receives compensation at the maternity pay rate until the end of March 2018.

 

46. We accept that the claimant was shocked and demoralised at being sacked when she was 16 weeks pregnant with no notice and with the attendant difficulty in obtaining another job in that condition. This was a manufactured redundancy situation where the claimant was ready and willing to return to work but was sacked and a more junior colleague was kept on in her place. We therefore award injury to feelings in the sum of £3,000.00.

 

47. The notice pay claim was withdrawn at the outset of the hearing and we therefore dismiss it.

 

SUMMARY COMPENSATION

 

48 (A) Compensatory award

 

(1) Loss statutory industrial rights : £ 500.00

 

(2) Loss pay:

 

(i) 22/3/17 (EDT) to 19/9/17

(DOB second child) - 25 weeks @ £115.20: £2,880.00

 

(ii) 19/9/17 to 27/2/18 (date of hearing)

23 weeks @ £103.70: £2,385.10

 

(iii) 27/2/18 to 22/4/18

(6 months after birth) 8 weeks @ £103.70: £ 829.60

 

Total: £ 6,594.70

 

(3) 50% uplift on compensatory award: £ 3,297.35

£ 9,892.05

 

(B) Interest on compensation (other than injury to feelings)

from EDT to date of decision:

 

22/3/18 - 52 weeks @ 8% p.a.: £ 903.00

 

(C) Injury to feelings compensation: £ 3,000.00

 

(D) Interest on injury to feelings award from mid-point date -

 

26 weeks @ 8% p.a.: £ 120.00

 

Total discrimination compensation: £13,915.05

 

(E) Basic award: £ 230.40

 

(F) Holiday pay: £ 755.55

 

Total Compensation: £ 14,901.00

 

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

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 27 and 28 February 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: