THE INDUSTRIAL TRIBUNALS

CASE REFS:   1619/05
61/06

CLAIMANT:			Gillian Mathers

RESPONDENTS:		Ewing Walker and Neil Walmsley
				T/A Greenmount Veterinary Clinic

CLAIMANTS:		Ewing Walker and Neil Walmsley
				T/A Greenmount Veterinary Clinic

RESPONDENT:		Gillian Mathers

DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly/ constructively dismissal by the respondents and she was not unlawfully discriminated against by the respondents on the grounds of her sex.  The respondents’ counterclaim is dismissed.
Constitution of Tribunal:
Vice President:		Mrs M Price
Members:			Ms Kennedy
				Mr McParland

Appearances:
The claimant/respondent was represented by Miss S McKeagney, Barrister-at-Law, instructed by Eamon McEvoy & Company, Solicitors.
The respondents/claimants were represented by Mr C Hamill, Barrister-at-Law, instructed by Worthingtons, Solicitors.

1.	There were two claims brought by the claimant in this case, firstly, on the ground that she had been constructively dismissed by her employers and that dismissal was unfair, and secondly, that she was discriminated against on the grounds of her sex in the failure to pay her sick pay for two weeks.  The respondents counterclaimed on the basis that there had been an overpayment of monies to the claimant.  However during the course of the hearing, counsel for the respondents stated that they were not pursuing the counterclaim and on that basis the tribunal dismissed the counterclaim.  

2.	The issues are as stated above and the tribunal benefited from the use of witness statements which were provided in this case.

Agreed facts

3.	The claimant was employed as a Veterinary Nurse/Receptionist by the respondents who took over a veterinary practice in 2002.  The claimant had been employed in the original practice from 1987 and her previous employer had been Mr Nelson.  When the respondents took over the practice the terms and conditions for the employees were retained.  The respondents accepted that the claimant was a very good worker and an employee whom they wished to retain.

4.	The claimant went on maternity leave on 27 October 2004 and had her third child later that evening.  Her maternity leave was due to finish on 2 May 2005.  She agreed that both partners had sent presents for the baby after she was born.  The claimant contacted both partners, separately, in the week commencing 18 April 2005.  Mr Walker said that the claimant was distressed as she told him that her baby girl was suffering from hip dysplasia and might need to wear a support and have surgery.  

5.	The evidence which was agreed between the claimant and the respondents was that they told her she could have additional maternity leave at that time.  However, the dispute in the evidence will be covered in the following paragraphs.

Disputed evidence and facts found

6.	This case revolved around events in the period of May and June 2005.  There is a credibility issue for the claimant and the two respondent partners in the business and a most important part of this case is in relation to the telephone calls when she requested additional maternity leave.  

7.	Mr Walker stated that the claimant said that she wanted to stay off work to look after her child.  He confirmed that they would be able to make alternative arrangements to cover further absence and that she should put her family first.  The claimant agreed that she was offered additional maternity leave.  The tribunal accepts that there was already a temporary replacement, Mrs Tierney, who was then requested to stay on for an additional period of time.

8.	The claimant informed both partners that she thought she was entitled to additional paid maternity leave because she had discussed this with the Citizens Advice Bureau.  The partners individually told her that they thought this was not correct, but that Ewing Walker would look into this as would Neil Walmsley and Ewing Walker advised the claimant to look into it again.  The claimant told Mr Walker on that occasion she needed this additional time off and if they did not grant it she would ‘have to go off on the sick’.  She said that she could not afford to take the time off unpaid and she would have no alternative but to go ‘off on the sick’ if they refused to pay her additional maternity leave.  That conversation with Mr Walker took place while he was driving in the Richhill area.  He stated to the tribunal that he was shocked.  He asked her if she was indeed sick.  She stated that she was not sick herself, but she needed time off to attend to the additional needs of her daughter.  She said that she did not feel comfortable leaving her daughter in the care of either her mother or a babysitter as she felt she should look after her herself.  

9.	In relation to Mr Walmsley, her conversation with him was, firstly, on 18 April 2005 when she had asked for a six month extension to her maternity leave and she had been told that she could, but that Mr Walmsley thought it was unpaid maternity leave.  Mr Walmsley issued the final weekly payment due for maternity pay on 27 April 2005.  It was common case that the claimant did not return from her maternity leave on the due date of 2 May 2005.  Mr Walmsley was on holiday and he was the person responsible for paying the wages.  He did not leave a cheque for the claimant as he knew she had not returned after maternity leave.  Mr Walker paid two cheques for the same amount of £103.43 while Mr Walmsley was on holiday because the claimant called in asking for money.  She had a further conversation with Mr Walmsley on 16 May 2005.  Mr Walmsley rang the claimant to tell her that there had been a mistake and that she had been overpaid for two weeks maternity leave.  However he told her, and the tribunal accepted that he told her, that this overpayment could be sorted out on her return to work in three to six months time.  She phoned him back to say that she was indeed not entitled to any extended maternity pay and she said to him “extended maternity leave will not suit me and I will have to go off on the sick”.  In the same conversation she told him “she was not sick but needed the money”.  

10.	The claimant disputed that she had these conversations with the partners and so the tribunal had to consider where the truth lay in these matters.  

The claimant’s medical evidence

11.	The claimant stated to the tribunal that she had been suffering back pain from the birth of her daughter and it was, in her words, ‘very severe’.  She stated that she had reported it to the doctor before the end of her maternity leave.  Her doctor gave evidence and she produced two reports for the claimant’s solicitor.  The doctor, in her report, stated that the claimant had problems with back pain and she (the claimant) ordered prescriptions for Diclofenal , a non-steroid anti-inflammatory drug, on 26 January 2005, 18 May 2005 and 14 September 2005.  When questioned, the doctor said that a patient can ask reception for a prescription.  She did not have a record of actually seeing the claimant in January 2005.  She relied on a computer print-out for the anti-inflammatory drug which was equivalent to one month’s supply of tablets if taken three times a day, ie if the back pain was severe.  The tribunal noted that there was no further prescription for back pain until May 2005.  This would not equate with someone who was suffering from severe back pain, as stated by the claimant.  We do not accept that the back pain was as severe as she said.

12.	There is no record from the doctor of seeing her other than a visit in March which was not related to this complaint.  Later records were given of visiting the doctor for back pain in January 2006 and at that time the doctor has recorded what the claimant had told her, “she has got ongoing problems with her employers”.  Similarly, on 21 June 2005 the doctor records that she was very distressed following a letter from her employer.  The letter in question had been sent on 14 June 2005, one week beforehand.  The doctor stated to the tribunal that she did not see the claimant on 3 May or 27 May 2005.  The doctor stated that the claimant could have telephoned the receptionist and received sick certificates that way, but there is no record of the doctor seeing the claimant and being satisfied that she was suffering from postnatal debility.  

13.	The claimant, in her evidence, stated that she reported back pain to her doctor before the end of the maternity leave.  There is no record of this in the doctor’s notes.  The claimant stated that it was back pain which was stopping her from going to work.  This is not borne out by her own medical reports and the tribunal finds that the claimant’s evidence on this point is not credible.

14.	The claimant was evasive in her answers to the conversation in which both partners stated that she had told them that if she did not get additional paid maternity leave she would go on the sick.  Her phrase was, “I don’t recall saying that”.  Similarly, she stated that she did not talk to the partners when she went into the veterinary clinic to collect her cheques after the maternity leave had finished.  The tribunal prefers the evidence of Mr Ewing Walker on this point.  There was no cheque available for the claimant because Mr Walmsley was on holiday and he had known that a cheque was not due to the claimant, hence the claimant must have asked Mr Walker to write her a cheque, otherwise she would not have received one.  The tribunal accepts the evidence of the respondents on this point and not that of the claimant.

15.	The claimant did have a sick child and it is consistent with her evidence that she wanted to be at home to look after the child.  We have seen the bank statements and can accept that the family would have needed extra income if she was not going to be working full-time, so the request for additional payments was consistent with a financial need.  

16.	The tribunal is satisfied from the evidence of the two respondents that they were genuinely shocked when the claimant stated that if she could not get additional maternity payment then she would go on the sick.  It is consistent with the evidence and the manner in which it was presented to us by the respondents that the two men were relatively new to employment practices in the veterinary surgery.  They contacted the Labour Relations Agency and took advice and they also took legal advice.  They were so concerned that they decided to write a letter to the claimant, setting out what they considered had happened and their concerns about her submitting sickness certificates to cover a period when she herself was not ill.  They used the words ‘threatened to carry out a fraudulent action and have subsequently carried this out’.  The tribunal can accept this caused distress to the claimant, but the tribunal accepts that it was clumsy wording on behalf of the respondents who were trying to explain to the claimant the difficulties that they were having.

17.	The tribunal has considered this letter carefully and the actions of the respondents, both before and after they wrote the letter.  We do not find that the respondents were intending to force the claimant to resign.  Their evidence was that she was a good employee who they wanted to keep, but they had been shocked by her actions following the ending of her maternity leave.

Claim for constructive dismissal

18.	In order to claim constructive dismissal, the claimant has to show that there was a fundamental breach of her contract of employment which entitled her to resign.  The breach relied on by the claimant is the letter of 10 June 2005 which was sent to her by her employers.  It is common case that she did not return to work after that letter had been received.  The tribunal has found that the respondents’ evidence in relation to events which occurred prior to 10 June 2005 was credible and in order to continue with the claimant’s contract of employment they were advised and did send a letter setting out the difficulties they had perceived with the claimant.  Before writing this letter, the tribunal is satisfied that the actions of the employers were not those of employers trying to force an employee out of her job.  They had agreed that she could have extended maternity leave, they had engaged and retained a replacement cover for her, they had paid her additional maternity leave payments and these did not amount to the actions of employers wanting to breach the claimant’s contract of employment.

19.	Similarly, although she did resign and did not return to work, she still had meetings with the respondents in relation to her grievance and the tribunal finds that the grievance was instigated so that she could present a claim for unfair/constructive dismissal and sex discrimination, and it would appear from the records of those meetings that she did not have any intention of returning to work.  At that time, she had already taken steps to become registered as a childminder.  The actions of the respondents did not amount to those of employers who were seeking to dispense of the services of the employee.  The tribunal accepts that they were prepared to wait for the claimant to come back from extended maternity leave.  The tribunal can also see that the words ‘fraudulent’ and ‘threat’ were perceived in a very bad light by the claimant and she decided not to return to work.  The partners asked her to come in and have a meeting with them and she did not do so.  They set up a meeting for her and by letter of 16 June and 1 July 2005 they also asked for her to come and meet with them.  She stated in evidence to the tribunal that she was too distressed to do so, but the tribunal does not accept her evidence on this point.  Meetings were set up and at no time did she contact the partnership to say that she would not be able to attend.  By this stage she was taking legal advice and her solicitors did not contact the respondents to say she would not be attending a meeting.  No reasons were given for this.  The tribunal is of the opinion that by this stage the claimant was intending to take legal action against the respondents and was not interested in returning to full-time employment.

Sex discrimination claim

20.	The claimant’s sex discrimination claim was based on the partners efforts to regularise contracts of employment for their employees, as there had not been any written contracts of employment before 2005, other than the one given to Clare Black.  That contract had a period of two weeks sick pay if the employee was off work as a result of sickness.  Clare Black confirmed that when she was off sick in May 2004 she received two weeks sick pay.  The tribunal accepted the claimant’s evidence that when she had been ill on previous occasions she had been paid in full for her sickness absence.  

21.	The tribunal saw documentation in relation to sick pay entitlement.  Mr Walmsley had prepared the memo saying that the terms of sickness pay had been revised and as from 1 January 2005 they would be paying full pay for a maximum of four days in any one calendar year.  The tribunal accepted that the staff, including the claimant, were not happy with this memo which they received towards the end of May 2005.  They stated that it had been custom and practice that management had paid two weeks full pay while on sick leave and thereafter statutory sick pay.

22.	The respondents contacted the previous owner, Mr Nelson, and he confirmed to them that it was not custom and practice to pay two weeks full pay, for sickness.  The tribunal in looking at this situation and in looking at what had happened was of the opinion that the partners looked at each person’s individual circumstances and in all the cases that had been referred to them, full sick pay had been paid.  The tribunal is aware that all the staff in this practice were female and that the claimant could not draw a comparison with any other male who had been more favourably treated.  Counsel for the claimant was relying on the fact that the claimant having been pregnant was subjected to a detriment, in that she was not paid her full amount of sick pay.

23.	The situation was confusing in June 2005, as mentioned earlier, because Mr Walmsley, the partner who dealt with wages, was on holiday.  However, the claimant was paid two weeks maternity pay to which she was not legally entitled because her maternity leave period had ended.  She produced sickness certificates which for some reason or other were not seen by the respondents until 17 May 2005.  They paid her sickness pay on the basis of these certificates until she resigned.  It is a confusing situation, but the reason for the overpayment was explained to the satisfaction of the tribunal by the respondents.  It was because of the partner’s holiday combined with the fact that the claimant did not return from maternity leave that the payments were confused.  She has not discharged the burden of proof in relation to this aspect of her claim.

24.	For the reasons outlined above, the tribunal is satisfied that the letter of 10 June 2005 did not constitute a fundamental breach of the claimant’s contract of employment and although she resigned as a result of it, she is not entitled to claim unfair/constructive dismissal.  Similarly, the claim for sex discrimination is not substantiated by the evidence and that claim is dismissed.

Vice President:

Date and place of hearing:	30 April – 2 May 2007, Belfast

Date decision recorded in register and issued to parties: