Jones v AM Transport Services Ltd  (Unfair Dismissal/Sex Discrimination/Payment in Lieu of Notice)  (4 November 2003)

INDUSTRIAL TRIBUNALS

CASE REF: 1735/02

APPLICANT:	Derek Jones

RESPONDENT:	A M Transport Services Ltd

DECISION

The unanimous decision of the tribunal is as follows:-

(1)	The applicant’s complaint of unfair dismissal is well founded and it is ordered that the respondent shall pay to the applicant the sum of £3,050.

(2)	The applicant’s other complaints are not well founded and they are dismissed.

Appearances:

The applicant appeared in person.

The respondent was represented by Mr A Ferguson of Personnel and Training Services.

REASONS

1.	These reasons are given in extended form.

Introductory

2.	The applicant was employed by the respondent, A.M. Transport Services Limited, as a cross channel lorry driver.  His employment began on 2 March 2001 and came to an end on 9 July 2002.

The complaints

3.	The complaints which the applicant makes in these proceedings are based on the following version of events.  According to the applicant, he is estranged from his wife.  His young children had been living with his wife, although he had regular overnight (“staying”) access to them.  However, at the end of June 2002, those caring arrangements broke down and the children had to come to live with him on a full-time basis.  On 9 July 2002, he returned from a cross channel trip which had taken longer than expected.  He was scheduled to begin a new cross channel trip for the respondent later that evening.  He told them that, because he could not sort out childcare arrangements, he would be unable to carry out that evening’s trip.  As a result, he got a telephone call from a director of the respondent company, Mr Damien Maguire.  During that call, Mr Maguire issued an ultimatum, in that he told him that he must do the trip later that evening, or he would be sacked.  In response, the applicant again made it clear that, because he could not get someone to mind his children at such short notice, he could not make the trip.  Mr Maguire’s response was to immediately and summarily dismiss the applicant.

4.	In his originating application in these proceedings, the applicant makes it clear that, among the types of complaint which he wishes the tribunal to decide are a complaint of unfair dismissal, a complaint of sex discrimination and a claim that the respondent had failed to provide him with pay in lieu of statutory notice.  In view of the nature of the factual allegations (as outlined above) upon which those complaints are based, the tribunal has thought it proper to construe the application as also including a claim for breach of Article 70C of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).

The evidence

5.	We heard evidence from the following:-

(1)	The applicant, on his own behalf.

(2)	On behalf of the respondent:-

(a)	Mr Damien Maguire, a director of the respondent company.

(b)	Mr Alex Maguire, managing director of the respondent company.

6.	We told the parties that we would pay regard only to documents to which our attention was specifically drawn.  The tribunal saw the following documents:-

(1)	A bundle prepared for the hearing by the respondent, consisting of thirty eight pages.

(2)	Some pay slips.

(3)	An undated response from the applicant to the Order for Further Particulars which was issued in this case.

Findings of fact

7.	From the evidence we saw and heard, the tribunal makes the following findings of fact:-

(1)	The respondent company is a family concern.  Mr Damien Maguire and Mr Alex Maguire are brothers.  Mr Alex Maguire has a 50% stake in the company, while Mr Damien Maguire and his wife hold the other 50% stake.

(2)	The applicant in these proceedings was one of the best lorry drivers which the respondent company had.  Mr Damien Maguire recognised him as such.  He was employed by the company for the purposes of carrying out cross channel lorry journeys.  In the average fortnightly period, he carried out five trips in all.  He usually carried out three trips in one week, two trips the next week, three trips the following week, and so on.

(3)	The applicant is estranged from his wife.  The two children of the marriage are a girl aged ten years and a boy aged five years.  Until the end of June 2002, the children lived with their mother, although they frequently stayed overnight with their father, the applicant, at weekends.  On 29 June 2002, the childcare arrangements broke down.  There was an argument between the applicant and the children’s mother.  As a result, she sent the children to his home by themselves.  Since that date, they have been resident with him and their mother has taken no part in the childcare arrangements in respect of them.

(4)	These developments caused something of a crisis for the applicant.  He needed, at very short notice, to make arrangements for baby-sitters, and for someone to mind the children on dates when he would not be at home overnight.  He talked to Damien Maguire about this problem.  Mr Maguire offered him a week’s unpaid leave, beginning on 16 July.  The agreed purpose of that time off was to allow the applicant to make arrangements in respect of childcare.  

(5)	In the meantime, the applicant had immediate childcare problems.  At 3.30pm on 9 July, the applicant arrived back from a cross channel trip for the respondent; he had arrived back later from that trip than initially expected.  At 4.00pm on that date, he phoned Mr David Hawthorne, the transport manager of the respondent company, and informed him that he would not be able to go on the next, scheduled, cross channel trip (which was due to begin that night), because he was unable to get anyone to look after his children.  Shortly thereafter, he received a telephone message to phone Damien Maguire.  He did so.  Mr Maguire told him that he needed him to go out on the scheduled trip that night.  The applicant told him that he could not go out, because he could not get a baby-sitter.  Mr Damien Maguire reiterated that he needed him to go out on the trip that night.  Nevertheless, the applicant declined to do so.  At that point in the conversation, Mr Maguire made it clear to him that he was being dismissed because of his unwillingness to go on the cross channel trip that night.

(6)	The applicant’s originating application in these proceedings was presented on Monday 22 July 2002.  On the previous Thursday, 18 July 2002, the applicant rang the general office of the respondent company, for the purpose of asking staff if they would return certain personal belongings of his which were still on the company premises.  To his surprise and embarrassment, Mr Alex Maguire personally answered the telephone.  In the course of that conversation, the two men discussed the fact that the applicant had ceased to be employed by the respondent company.  However, Mr Alex Maguire did not put it to the applicant that he had resigned, and the applicant made no reference to the fact that he had been dismissed.  The applicant explained the latter omission, in his oral testimony to the tribunal, by asserting that he did not want to discuss the issues with Mr Alex Maguire because, by that time, he had already decided to begin tribunal proceedings; we accept the accuracy of that assertion.

(7)	During the material period, the respondent company did not employ any female drivers.  

(8)	Having carefully considered the oral testimony of Mr Damien Maguire, the tribunal is entirely satisfied that if a woman had been in a situation similar to that in which the applicant found himself on 9 July, and if that woman was a lorry driver for the respondent company, Mr Damien Maguire would have treated that female lorry driver no better than he treated the applicant on that date.

8.	On the question of whether or not Mr Damien Maguire dismissed the applicant (during the course of the 9 July conversation) there was a sharp conflict between the version of events put forward in the applicant’s oral testimony on the one hand, and the version of events put forward in the testimony of Mr Damien Maguire on the other hand.  In resolving that conflict of evidence, we took account of the demeanour of each witness, and of the manner in which each witness gave evidence.  We also took account of the extent to which each version of events was consistent with the known (undisputed) facts.  Having done so, we preferred the version of events put forward by the applicant.  We found him to be a more credible and impressive witness than Mr Damien Maguire.

The main submissions

9.	Mr Ferguson, who is a qualified solicitor, presented the respondent’s case with courtesy and skill.  His submissions on behalf of the respondent can be summarised as follows.  Firstly, the tribunal should be satisfied, on the available evidence, that the applicant resigned.  Secondly, there was no evidence that the applicant had been treated less favourably than the respondent company would (in the same circumstances) have treated a woman.  Thirdly, Article 70C of the 1996 Order did not apply in the particular circumstances of this case; if that Article did apply, there had been no breach of its requirements.

10.	We are also grateful to the applicant for the clarity with which he presented his side of the case.  His submissions can be summarised as follows.  Firstly, the tribunal should be satisfied, on the basis of his evidence, that he was sacked during the 9 July telephone conversation with Mr Damien Maguire.  Secondly, the applicant made it clear to us that he was personally convinced that his gender was a factor in the treatment which was accorded to him on 9 July.  Thirdly, the applicant made it clear that he considered that the respondent company had failed to act reasonably in the context of the applicant’s temporary childcare crisis.

The law and our conclusions (unfair dismissal)

11.	The effect of Article 130 of the 1996 Order is that, unless an employer shows that the reason, or principal reason, for a dismissal is a potentially fair reason, the dismissal will be regarded as unfair for the purposes of the unfair dismissal legislation.

12.	The complaint of unfair dismissal is well founded because, although we are satisfied that the applicant was dismissed, the employer has not shown that the reason for dismissal was one of the potentially fair reasons which are listed at Articles 130(1) and 130(2) of the 1996 Order.  

The law and our conclusions (sex discrimination)

13.	In this case, the applicant complains that, because of his dismissal, and because of the treatment which he received during the 9 July phone call, the employer must be taken to have discriminated against him, by dismissing him, or by subjecting him to “any other detriment” (within the meaning of Article 8 of the Sex Discrimination (NI) Order 1976 (“the 1976 Order”).  Having regard to the nature of the factual allegations in this case, it is clear that, in the circumstances of this case, the allegation of discrimination is an allegation of unlawful direct sex discrimination against the applicant.  According to Article 3(2) of the 1976 Order, as applied to men, a person carries out an act of direct sex discrimination against a man if, on the grounds of that man’s sex, it treats the man less favourably than that person treats, or would treat, a woman.

14.	We are satisfied that the complaint of sex discrimination is not well founded because, having carefully considered the testimony of Mr Damien Maguire, we are satisfied that, in the same, or substantially the same, relevant circumstances, a woman would have been treated in exactly the same manner as the applicant was treated.

The law and our conclusions (notice pay)

15.	Part X of the 1996 Order provides for minimum periods of notice of termination of employment, and for payment in lieu of such notice, if the stipulated period of notice is not given.  In the case of an employee who has been continuously employed for more than one month but for less than two years, the stipulated period of notice is one week.

16.	The applicant also complains that there had been a breach of the statutorily implied terms of contract which are imposed by Part X of the 1996 Order, in that there has been a failure to provide him with one week’s pay in lieu of notice.  In view of the fact that the applicant was summarily dismissed on 9 July 2002, that complaint is well founded.

The law and our conclusions (Article 70C)

17.	Article 70C of the 1996 Order provides that an employee has the right not to be subjected to any detriment by any act of his employer, if that act is done for a prescribed reason.  A prescribed reason is one which is prescribed by regulations and which relates to one of the matters specified in Article 70C(2).  One of the matters so specified is “time off under Article 85A [of the 1996 Order].”

18.	Under Article 85A, an employee is entitled to be permitted by his employer to take a reasonable amount of time off during the employee’s working hours in order to take action which is necessary because of the unexpected disruption or termination of arrangements for the care of a dependant of that employee.

19.	Under Article 131 of the 1996 Order, an employee who is dismissed must be regarded, for the purposes of the unfair dismissal legislation, as being unfairly dismissed if the reasons or principal reason for the dismissal is of a prescribed kind, or if the dismissal takes place in prescribed circumstances.  Article 131 of the 1996 Order defines “prescribed” as meaning prescribed by regulations made by the Department.  Article 131(3) provides that a reason or set of circumstances prescribed under Article 131 must relate to one of the situations listed in that paragraph.  One of the situations so listed is “time off under Article 85A [of the 1996 Order]”.

20.	Article 85A has to be construed within the statutory context in which it is to be found.  Article 131 of the 1996 Order is part of that context.  It seems to us to be clear that Article 131 is intended to deal with complaints (arising out of a need to take leave because of a breakdown in childcare arrangements) which relate to the moment of dismissal or to the events immediately surrounding it.  If (as we conclude) that view of the scope of Article 131 is correct, it follows that Article 85A does not deal with detriments to which an employee is subjected because of dismissal or because of events immediately surrounding a dismissal.

21.	The Article 70C complaint must be dismissed because, even if one assumes that the applicant was subjected to detriment because of the telephone call on 9 July, this was detriment which related to the dismissal itself, or which related to the events immediately surrounding that dismissal.

Calculation of compensation

22.	The applicant is entitled to an award of compensation in respect of unfair dismissal, consisting of a basic award and a compensatory award. 

23.	It is agreed between the parties that the applicant is entitled to a basic award of £250.

24.	As part of the compensatory award, we award the sum of £200 for loss of statutory rights.

25.	We have considered the question of whether the applicant would in any event have resigned, at some stage after 9 July 2002, if he had not been dismissed on that date.  Obviously, as a cross channel driver, the applicant would have faced difficulties in making sure that his children were properly taken care of during periods while he was working.  However, the applicant strongly asserted, in his evidence to us, that he would have stayed in the job, and would have been able to make adequate childcare arrangements in that connection, if he had not been dismissed.  The applicant, in our view, is a resourceful and determined individual.  Accordingly, we accept his evidence on that issue.  Therefore, for the purposes of calculating the compensatory award, we assume that the applicant’s employment with the respondent would have continued indefinitely, had it not been for the dismissal.

26.	Because of the applicant’s domestic situation, his income consists of four elements (wages, child credit, tax credit and child benefit).  His income would have consisted of those same four elements even if he had not been dismissed.  For the purpose of calculating compensation, we can ignore child benefit, because the amount of child benefit payable is a fixed amount, which does not vary in accordance with the recipient’s income.  However, we have to take account of net wages and child credit and tax credit.  (Both child credit and tax credit amounts vary, and are lesser or greater, depending upon the amount of the recipient’s wages).

27.	We accept that, if the applicant had not been dismissed, he would have carried out two trips per week for the respondent and would have earned £206 net pay for that.  We have to add to that, the amount of child credit (£66) which he would have received in conjunction with those wages and the amount of weekly tax credit (£30) which he would have received in conjunction with those wages.  This makes for a total of £302.  However, the applicant, since his dismissal, has not found employment at wages of £206 net per week.  Instead, from 15 July 2002, he has been employed in a part-time job which pays him £72 net per week.  On the basis of that salary, he receives £71 child credit and £58 tax credit, making for a total of £201 per week.  Accordingly, as a result of this dismissal, the applicant lost £206 wages for the first week of his dismissal.  During every week since, his income has been £101 less than it would have been if he had still been employed by the respondent.

28.	Has the applicant, as a matter of law, failed to mitigate his loss?  The applicant was frank in telling us that he had been content to continue part-time employment, and had not sought full-time employment, because of his domestic situation.  According to the applicant’s evidence (which we accept), once he found himself out of a full-time job, he decided not to seek to resume full-time employment, because he found part-time working more suitable from his family’s point of view.  Obviously, the applicant cannot justifiably be criticised for this lifestyle choice.  Indeed, it may well be very beneficial to his young children.  However, the financial consequences of that lifestyle choice are consequences which cannot be taken into account for the purposes of augmenting the compensatory award.  In our view, as a matter of strict law, the applicant has not mitigated his loss.  In our opinion, the applicant would probably have been unable to obtain full-time employment, at roughly the same net wages as he received while employed by the respondent, approximately six months after the date of dismissal.

29.	We allow £2,600 in respect of loss to date.  The compensatory award does not include any element in respect of future loss.  

30.	Accordingly, the applicant is entitled to a compensatory award of £2,800 (£2,600 for loss of wages and £200 for breach of statutory rights).

31.	The overall unfair dismissal award of compensation is £3,050 (consisting of a basic award of £250 and a compensatory award of £2,800). 

32.	The Recoupment Regulations do not apply in the circumstances of this case, because the applicant has not, in respect of any relevant period, sought or obtained any social security benefit which would trigger the application of the Regulations.

33.	The loss sustained by the applicant because of the failure of the respondent to provide due notice of termination of employment is loss which has been taken into account in arriving at the amount of the compensatory award for unfair dismissal compensation purposes.  Accordingly, it would not be appropriate to make a separate award in respect of notice pay.

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

Chairman:
Date and place of hearing: 3 and 4 November 2003, at Belfast.
Date decision recorded in register and issued to parties: