Truesdale v Gillan & Ors [2004] NIIT 413_02 (17 February 2004)

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    THE INDUSTRIAL TRIBUNALS

    CASE REF: 413/02

    APPLICANT: Sharon Truesdale

    RESPONDENTS: 1. John Gillan

    2. Harry Clarke & Co (Antrim) Ltd
    3. Insurance Services (NI) Ltd

    DECISION

    The unanimous decision of the tribunal is that all the applications are dismissed.

    Appearances:

    The applicant attended and was unrepresented.

    The first and second named respondents were represented by Mr J Dunlop, Barrister-at-Law instructed by Cleaver, Fulton & Rankin Solicitors.

    The events relating to the applicant's employment were as follows:-

  1. The applicant commenced employment with the second named respondent on 14 August 2000. At the outset of her employment the applicant was employed by Clarke Gillan Associates and Estate Agency, which became Harry Clarke & Co (Antrim) Ltd on 1 July 2001. The first named respondent is the Managing Director of Clarke Gillan Associates Ltd and of the second named respondent. The applicant was employed as a part-time sales negotiator based in Antrim. The applicant worked approximately 16 hours per week. In March 2001 the first named respondent together with Bill Magee and Alan Tolson opened Insurance Services (NI) Ltd the third named respondent in Ballymena, the second named respondent having suffered a down turn of business in March 2001 asked the applicant to move to work in Ballymena for the third named respondent at a pay increase of £1.50 per hour. The third named respondent was an insurance business. At all times after 1 June 2001 the applicant was paid by the third named respondent and her letter of termination was from the third named respondent. The applicant ceased to be employed by the second named respondent on 1 June 2001 and the first named respondent notified the Inland Revenue of this at that time. She became an employee of the third named respondent from that date. This was confirmed by information provided to the Working Families Tax Credit on 27 October 2001. On 27 November 2001 the applicant asked the first named respondent if she could return to work in Antrim for the second named respondent as she had been made aware that the third named respondent may cease trading. The first respondent was unable to give the applicant a permanent job there but offered her temporary work while she found alternative work in the area. On 6 December 2001 the first named respondent sold his share-holding in the third named respondent to Bill Magee, one of the share-holders of the third named respondent and had no further interest in that Company. On 18 December 2001 the applicant was dismissed by the third named respondent. She received her final wages on 17 January 2002 but failed to receive a P.45.

  2. The applicant claimed that she was unfairly dismissed and subjected to both sexual discrimination and racial discrimination by the first, second and third named respondents.

  3. The tribunal heard evidence by way of witness statements from the applicant and the first named respondent. In relation to the unfair dismissal claim the tribunal found that the applicant was employed by the second named respondent from August 2000 until 1 June 2001. The applicant's case was that she was employed by the second named respondent throughout and up to December 2001. She argued she was moved on a temporary basis only to work for the third named respondent. She therefore argued that she had continuity of employment in particular with the second named respondent until her dismissal on 18 December 2001. The tribunal found however that the applicant moved to Ballymena and this move was to a separate company and was not made on a temporary basis. The tribunal found that although the first named respondent was involved in both the second and third named respondent companies, the third named respondent was a separate entity to the other employers. The tribunal found that the applicant went to work for a separate company, which undertook different work, and she was employed at a higher rate of pay. The tribunal did not accept that the evidence established that this move was temporary and the claim to Working Families Tax Credit supported the argument that the applicant for the later period was employed by the third named respondent as this was clearly stated on the Working Families Tax Credit application form. The tribunal accepted that the first named respondent ceased to be involved with the third named respondent on 6 December 2001 some two weeks before the applicant's employment was terminated. The applicant was employed by the third named respondent from 1 July 2001 to 18 December 2001. The evidence of the first named respondent in relation to the business difficulties of the second and third named respondents was accepted by the tribunal. The third named respondent ceased trading on 31 December 2001. It was accepted by the first named respondent that the applicant did not have written terms and conditions of employment or statement of her main terms during her employment by either the second or third named respondents.

  4. The tribunal having considered the evidence presented found that the applicant did not have sufficient continuity of employment to present a case of unfair dismissal against the second named respondent. The tribunal accepted the first named respondent's evidence that the applicant was employed by the third named respondent at the date of termination of her employment. The applicant made very detailed statements regarding her treatment in relation to pay, tax codes for the Inland Revenue and other ancillary issues. However, the tribunal found that these matters did not affect the outcome of the unfair dismissal claim. In respect of third named respondent the tribunal found that the period of the applicant's employment from 1 June 2001 to 18 December 2001 with an effective date of termination on 17 January 2002 did not amount to the necessary period of employment with the third named respondent to present a claim for unfair dismissal. The tribunal found that the applicant's period of employment with the second named respondent could not be used to establish continuity of employment with the third named respondent as these two respondents were different legal entities involved in different lines of business even though the first named respondent was a share-holder and director of both businesses. This fact alone was not sufficient to establish continuity. The unfair dismissal claim in respect of all respondents is therefore dismissed.

  5. In relation to the sex discrimination application the applicant claimed that she was treated less favourably than another female who was on a Youth Training Programme and who worked for the second named respondent for a period of three months. The applicant alleged that she was told by the first named respondent that the YTP would be more cost effective. The applicant argued that she was treated differently on the grounds of her sex because of this and in relation to her being a part-time worker. The evidence from the first named respondent was that all the other employees of which three including the YTP were female and one male all worked part-time. On the basis of the scant evidence presented by the applicant the tribunal did not find that any claim of sex discrimination was established. There was no evidence presented to establish that the applicant was treated less favourably than any of the other employees. The applicant's allegation that she was paid after other employees or at times when it was too late for her to cash her pay cheque was disputed in evidence by the first named respondent who presented details of payments made to her and cheques cashed. The tribunal also accepted the first named respondent's evidence that the YTP was aged sixteen to seventeen years and only remained for a three-month period of employment. She did not do the work which the applicant had previously been employed to do with the second named respondent. The tribunal were therefore satisfied that the applicant was not less favourably treated than any other staff member on the basis of her sex and that claim is rejected.

  6. The applicant also claimed that she was discriminated against on the grounds of race as her background is Chinese. Again her argument related to the manner in which she was paid during her employment. She did not refer to any racial remarks during her employment with any of the respondents and she made no reference to any claim of racial discrimination during her employment at all. The applicant argued that all the other employees were white Caucasian and that they were paid their wages on time and she was not and that it was because of her race. The tribunal did not accept the evidence presented by the applicant that there was any consistent failure to pay her her wages on time or in a manner, which would prevent her cashing her cheques. The tribunal found that these allegations did not have merit and there was no evidence to establish that the applicant suffered any unfair treatment in relation to this in respect of her race. The application in respect of racial discrimination was therefore also rejected.

  7. For the reasons stated the applicant's case fails in its entirety.

    8. Chairman:

    Date and place of hearing: 17 February 2004, Belfast.

    Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIIT/2004/413_02.html