THE INDUSTRIAL TRIBUNALS

CASE REF:	03294/00

APPLICANT:	Marisa O’Prey

RESPONDENT:	PHAB (Northern Ireland) 

DECISION
The unanimous decision of the tribunal is that the respondent did unlawfully discriminate against the applicant on grounds of her sex and the tribunal awards her £7,347.28 with interest thereon.  

Appearances:
The applicant was represented by Mr G Grainger, Barrister-at-Law, instructed by 
Savage & Co.

The respondent was represented by Mr K Gibson, Barrister-at-Law, instructed by 
Lagan Equality Services.   

1.	The applicant commenced employment with the respondent on 25 October 1999 on a one year fixed term contract as an “Early Years Assistant”.  It was common case that the contract was renewable subject to funding being available.  The respondent is a registered charity.

2.	The applicant’s complaint is that she was unlawfully discriminated against by the respondent on grounds of sex/pregnancy.  She alleged firstly that the respondent discriminated against her in failing to renew her contract.  Secondly, she alleged that the respondent discriminated against her in failing to advise her that she should complete the necessary work to achieve her full level II NVQ qualification in childcare so that she would be eligible for the post of playworker which became available in or about the time the applicant’s contract was not renewed, allegedly for reasons of inadequate funding.  

3.	The respondent accepted that prior to commencing employment, the applicant had spent one and a half years on work experience with the respondent as part of her course at level II NVQ in Childcare.  During that time the applicant had continued her education on a day-release basis.  It was also accepted that at the time of commencing employment, the applicant had almost completed her portfolio which detailed her knowledge and work experience.  Indeed the tribunal accepts that the remaining work could have been completed and assessed within two weeks, and the applicant could then have obtained her level II qualification. 

4.	The issue of why the applicant had not completed the minimal amount of work necessary to achieve her qualification was a matter of dispute between the parties.  The tribunal is satisfied on a balance of probabilities however, that no pressure was ever put on the applicant to finish her course, nor was she ever advised that her future employment might depend on the qualification being obtained.  Furthermore, the tribunal accepts that the applicant informed Ms Filsen, the Assistant Director of Childcare, that she was having difficulty getting assessments done.  Although Ms Filsen also said that in response to this information she telephoned the college, and was informed that the applicant had not been attending, this evidence conflicts with other evidence which Ms Filsen gave, namely, that it was not necessary for the applicant to attend any further classes in order to complete her portfolio.

5.	It is common case that on a number of occasions Ms Filsen asked the applicant if she would increase her hours from 25 to 35 if the opportunity arose, and the applicant indicated her willingness to do so.  The tribunal accepts that Ms Filsen was under pressure to ensure appropriate child/staff ratios in the nursery.  Minutes of a meeting between Ms Filsen and Ms Celine Heatley the personnel officer, dated 4 April 2000, confirm that Ms Filsen needed two additional staff in the nursery as well as increasing the applicant’s hours in order to comply with the regulations.

6.	What is in dispute between the parties however, is whether Ms Filsen’s offer to increase her hours occurred before or after the applicant announced that she was pregnant.  The applicant told the tribunal that she informed Mandy Gardiner the assistant manager of her pregnancy, around August, during Ms Filsen’s holiday absence.  In the originating application the applicant had stated that she informed Ms Filsen of her pregnancy in late August 2000.  In the applicant’s reply to particulars, she referred to the date as being the end of July, beginning of August 2000.  Whatever the precise date, the applicant was adamant that any conversation about her hours being increased occurred prior to the announcement of her pregnancy.  Ms Filsen contended however that she had offered to increase the applicant’s hours (subject to funding) both before and after the announcement.  Having listened to the evidence of both the applicant and the respondent, and having observed their demeanour, the tribunal prefers the evidence of the applicant that all conversations relating to an increase in hours occurred prior to her pregnancy being announced.

7.	On 13 September 2000, without any warning, the applicant received a letter from Ms Heatley, the personnel officer informing her that her post was due to finish on Wednesday 25 October 2000 and although further funding was constantly being sought she should consider this date to be final.  The letter referred to two vacancies in the nursery, but informed her that funding requirements required level III NVQ, and she was therefore not eligible to apply.  

8.	The tribunal accepts the applicant’s evidence that she was shocked and hurt to receive this news as she had every reason to think not only that her contract would be renewed, but indeed that her hours would be increased to 35.  Although the tribunal accepts that the respondent did have financial difficulties, the tribunal is not satisfied that the applicant ever received a letter which Ms Heatley alleged had been sent to all staff in or about May 2000 explaining those difficulties.  Nor, was any evidence given to the tribunal that the applicant was ever informed that her post was not likely to be renewed prior to the letter of 13 September.

9.	On 25 September 2000, the applicant wrote to Ms Heatley suggesting that her treatment may amount to unlawful discrimination on grounds of her sex and/or pregnancy.  Ms Heatley replied on 6 October 2000.  In that letter Ms Heatley explained that the applicant’s post was finishing on 25 October because it was a one year fixed term contract and “the organisation is not in a position to further fund this post”.  Ms Heatley repeated the information relating to the new level III posts for which the applicant was not eligible and then added that the respondent had also advertised for two playworker positions which required a level II NVQ qualification.  

10.	The applicant forwarded a statutory questionnaire pursuant to Article 74(1)(b) of the Sex Discrimination (NI) Order 1976 (as amended).  In its reply the respondent disputed that its treatment of the applicant amounted to unlawful discrimination.  It relied on five reasons for its contentions:

(1)	The applicant’s contract ended as it was a one-year contract.

(2)	Further funding was received but the funding body stipulated an NVQ level III essential requirement.

(3)	After school posts which are self-funding [playworkers] required a level II NVQ as there is a level of responsibility attached to this position.  If the applicant had completed her training as she had agreed to do at the interview for the Early Years Assessment Post she would have been offered this post.

(4)	No one has been employed in the applicant’s post as we still have no funding for the salary.

(5)	Other staff have not been dismissed due to pregnancy and in fact our after school worker who was employed recently was pregnant when interviewed (she had a level II NVQ).

11.	As part of the statutory questionnaire the applicant sought the following documentation:

(i)	Minutes and papers relating to any meeting at which my dismissal was discussed.

(ii)	My contract of employment.

(iii)	Any correspondence and documents in the respondent’s possession, care or control relevant to the determination of the issues in this case.

(iv)	Respondent’s equal opportunities policy.

The Equal Opportunities Policy and the applicant’s contract of employment were furnished along with copies of correspondence between the applicant and Ms Heatley referred to at paragraphs 6 and 8 above.

In relation to the applicant’s request for “minutes and papers relating to any meeting at which my dismissal was discussed”, the respondent replied as follows on 8 January 2001:

	“I would draw your attention to your request for minutes and papers relating to any meeting at which dismissal was discussed, and inform you no minutes were taken as it was a straightforward end of contract for which there was no further funding available to offer a new contract of employment.”

That letter was signed by Ms Heatley.

12.	As part of the statutory questionnaire the applicant sought the following information:

6(c)	Why was I dismissed?
	The respondent’s reply was:

		“Your contract ended as it was a one year contract and the only funding the organisation successfully obtained to fund a salary required NVQ level III.

6(d)	Who took the decision to dismiss me?

	The respondent’s reply was:

		“There was no money to offer you a new contract of employment and the funding obtained to employ new staff stipulated NVQ level III.

		There was no decision to be made other than the organisation were unable to fund a new contract of employment.”

6(f)	What factors were taken into account that led to my dismissal?
	The respondent’s reply was:

		“The only factor which ensured you were not offered a new contract of employment was lack of funding and lack of qualifications to meet the funding body requirements.”

13.	The applicant contended that she had been less favourably treated than two other Early Years Assistants whose fixed term contracts had been renewed in December 2000, two months after her contract had not been renewed.  In particular, she pointed to the fact that one of those Assistants namely Cathy Reilly, had no qualifications at all, and the other namely Tracey Morgan, was less well qualified than the applicant, having completed only four units of level II NVQ which is equivalent to level 1.  The applicant, on the other hand could have completed the work necessary to achieve her full level II qualification within a number of weeks.

14.	The tribunal was provided with a copy of the personnel specification for the post of Early Years Assistant which stated that an essential requirement was that the successful candidate should be “working towards NVQ Level II in childcare or equivalent.”  A desirable requirement was that the successful candidate should have the level II NVQ qualification.

15.	Ms Filsen told the tribunal that Tracey Morgan had commenced employment with the respondent eight or nine years earlier, had a mild learning disability and was assessed as being unlikely to complete more than the four units which she had already achieved.  She also stated that when Ms Reilly and Ms Morgan’s posts were due to expire, eight weeks after the applicant’s, she could not afford to lose them from the nursery.  When she was questioned about her failure to retain the applicant who was the only Assistant who satisfied the essential academic criterion for the post she referred to other factors ‘such as flexibility, reliability and punctuality’.  She said that Ms Morgan had more experience than the other two Assistants.  Ms Filsen was then directly asked the following question:

“Were those factors which were considered?

Her reply was: 

“No, the only thing that was considered was funding;  If we had to look at all three [Assistants] it would have been Cathy and Tracey who would have been kept.”

16.	However, when Ms Heatley, the personnel officer subsequently gave evidence to the tribunal, she gave a very different account of the background to the respondent’s decision not to renew the applicant’s contract.  She explained to the tribunal that apart from the two new level III posts which were about to be created under the “Surestart Scheme”, the other posts in the nursery were financed by income from nursery fees and block funding from the D.H.S.S.  The nursery had a set budget which had to be adhered to.  The finance officer indicated that a reduction would have to be made in the nursery budget and the decision was left to Ms Heatley and Ms Filsen to decide how the budget should be reduced.  Contrary to the evidence of Ms Filsen, Ms Heatley said that the decision as to which of the three Assistants should be made redundant was decided by the application of pre-arranged redundancy criteria which had been drawn up in July to deal with a number of redundancies within the organisation.  Ms Heatley said each of the assistants was assessed according to these criteria and that the relevant documents would be found in the applicant’s personnel file.

17.	The tribunal notes that when the applicant had asked who had taken the decision to dismiss her in the statutory questionnaire, she was not told that the decision had been taken jointly by Ms Filsen and Ms Heatley.  In fact, she was told that 

“there was no decision to be made other than the organisation were unable to fund a new contract of employment”.

18.	The tribunal further notes that Ms Heatley’s evidence regarding the factors which were taken into account in deciding not to renew the applicant’s post is at odds with the reply given at paragraph 6(f) of the Questionnaire.

19.	The tribunal did not find Ms Filsen to be an impressive witness.  Neither did we find Ms Heatley to be impressive.  In particular, her evidence conflicted with what she had stated in her letter of 8 January 2001 when she stated that:

“I would draw your attention to your request for minutes and papers relating to any meeting at which dismissal was discussed and inform you no minutes were taken as it was a straightforward end of contract for which there was no further funding available to offer a new contract of employment”.

20.	No documents were furnished to the tribunal demonstrating that objective criteria were in fact applied to the three Early Years Assistants.  These documents would certainly come within the ambit of documents sought by the applicant at paragraph 6(h)(i) and (ii) of the Statutory Questionnaire, and paragraph 5 of the applicant’s request for discovery.  No evidence was given by the respondent as to why those documents had not been produced.  The respondent’s representative submitted that his instructions were that the person whose role it was to produce the documentation did not consider the documents to be relevant.  The tribunal does not accept this explanation, particularly when Ms Heatley herself failed to produce them when she sent her letter of 8 January 2002.  

21.	The applicant further contended that she was treated less favourably than she would otherwise have been treated had she not been pregnant, by the respondent’s failure to inform her that two playworker positions would be available but she would need to have her level II qualification to be eligible to apply.  She contended that if she had been so informed, she would have ensured that her portfolio was completed and assessed, which as the tribunal has already stated would have required only about two weeks’ work.

22.	Ms Filsen was questioned at length about the date the respondent first became aware that there would be two such posts available.  The positions were filled on 16 and 30 October 2000 respectively.  Ms Filsen told the tribunal that the respondent would have been aware in September but then agreed August would have been more likely.  In fact, it is clear from the minutes of 4 April meeting that the respondent had decided on these posts as early as April.

23.	Ms Filsen contended that the applicant would have been aware from general knowledge that these posts were going to be available.  However, the tribunal is satisfied that the applicant had no reason to believe that her own post of Early Years Assistant was in jeopardy.  Therefore, even if she had known that a level II qualification was required for these posts (and no documentary evidence was produced to the tribunal to confirm that this was required) she could not have realised that there was any urgency in completing her portfolio and getting the qualification.

24.	The respondent relied on the fact that Georgina Trickett, one of the playworkers employed, was pregnant at the time of her interview.  It was contended that this fact pointed against a finding of unlawful discrimination.

In view of the fact that the respondent conceded that it was aware at the time of Ms Trickett’s interview that the applicant had suggested her treatment may have amounted to unlawful discrimination, the tribunal does not consider that a great deal of weight could be placed on this evidence.

25.	The tribunal considers the respondent’s failure to warn the applicant that her job might not be renewed and to inform her that she should immediately complete her portfolio so that she would be eligible for the position of playworker was not the action of a reasonable employer.  The tribunal considers that this fact coupled with the failure of the respondent to renew the applicant’s contract when she was the only Early Years Assistant who satisfied the essential academic criterion for the post raises a prima facie case of less favourable treatment on grounds of sex/pregnancy.  Accordingly, the tribunal looked to the respondent for an explanation.  The only explanation offered was that the applicant knew about the playworker posts, and in any event she had had a year to complete her portfolio, and had failed to do so.  No consistent explanation was given by Ms Filsen and Ms Heatley as to the reason the applicant’s contract was not renewed in comparison to the other two Assistants.  The tribunal is not satisfied that the respondent has provided a clear, satisfactory and non-discriminatory explanation for the treatment of the applicant.

26.	The tribunal considers that it is appropriate to draw an inference of unlawful discrimination from the following facts:

(a)	the respondent conceded that the applicant was very good with the children, was always pleasant, and got on well at her job;

(b)	prior to announcing her pregnancy, the applicant had been asked to increase her hours if the opportunity arose;

(c)	a matter of weeks later, and without warning, the applicant was informed by letter that her post would not be renewed;

(d)	despite the fact that the personnel specification for the post of Early Years Assistant stated that an essential requirement was that the candidate should be “working towards level II NVQ”, the applicant’s contract was not renewed, whereas eight weeks later the contracts of the two Assistants who did not satisfy this criterion were renewed;

(e)	The respondent was aware that the applicant would be without a job if her contract was not renewed, and if she could not apply for the position of playworker which allegedly required a level II NVQ qualification;

(f)	the respondent was fully aware that the applicant could have obtained her full level II qualification with a minimum of work and within a short period of time; and

(g)	the reply to the statutory questionnaire is evasive and the information in Ms Heatley’s letter of 8 January 2001 which was a reply to a request for discovery is in conflict with the evidence given by Ms Heatley. 

27.	The applicant clearly suffered an economic detriment arising out of her unlawful discrimination.  In addition, she gave evidence which the tribunal accepts that she felt shocked, hurt and angry that her contract was not renewed, and she could not really understand what had happened.  The applicant’s baby was born in March 2001, and it is to her credit that at the earliest opportunity the applicant began to seek work and indeed successfully obtained a full-time job on 12 June 2001.  The tribunal accepts that although she earns more in her new job than she did with the respondent she would prefer to be working with children rather than with elderly people.

28.	The tribunal awards her £5,000 for injury to her feelings.  

Loss of earnings was agreed by the parties at £2,347.28.  However, the parties were in dispute as to whether the tribunal should deduct £1,120 from this amount since this was the amount of income support benefit which she had received.

Mr Grainger on behalf of the applicant, referred the tribunal to paragraph 533.4 of Harvey Volume 2 at L in support of his contention that since the recoupment regulations do not apply in discrimination cases, the tribunal has no power to deduct this amount.

Mr Gibson contended that it was wrong in principle that the applicant should in fact receive more compensation than she had in fact suffered, because of the income support which she had received.  He could point to no authority to support his submission.

The tribunal is not satisfied that in the absence of the operation of the recoupment regulations it has the power to deduct the amount of £1,120.  Accordingly it awards the full amount of agreed special loss.

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

 

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Date and place of hearing:  25-26 June 2002, Belfast

Date decision recorded in register and issued to parties: