THE INDUSTRIAL TRIBUNALS

CASE REF:  1139/08

CLAIMANT:		Louise Camac

RESPONDENTS:	1.  Craig Bennett T/A The Bennetts Mace
			2.  Bennett’s Northern Ireland Ltd

DECISION
The Tribunal finds the claimant’s claims for sex discrimination and unfair dismissal well founded and orders the second respondent to pay to the claimant compensation of £23,312.85 made up as follows:-

 1.	£14,423.25	as compensatory award for discrimination
 2.	 £8,889.60	for injury to feelings.

Constitution of Tribunal:
Chairman:		Mr B Greene
Panel Members:	Mrs T Madden
			Mr J Lyttle

Appearances:
The claimant was represented by Mr Rory Fee, of counsel, instructed by Meyler McGuigan, Solicitors.
The respondents were neither represented nor in attendance.

SOURCES OF EVIDENCE

 1.	The Tribunal heard evidence from the claimant and her witnesses Martina Rice, Cahal McCrory and Trevor Camac, her husband.  The Tribunal also received two bundles of documents amounting to 137 pages, a Schedule of Loss and a written submission.

THE CLAIM AND DEFENCE

 2.	The claimant claimed sex discrimination and unfair dismissal by reason of her pregnancy or maternity.  

In their response the respondents denied the claimant’s claims.

	The Tribunal was satisfied that the respondents had been notified of the hearing.  The first respondent wrote to the Office of the Tribunals to state that the company has gone into administration.  The named administrator was notified of today’s hearing.  The claimant’s legal advisers contacted the administrator and were informed that the second respondent had gone into voluntary liquidation after a meeting of creditors on 28 July 2009.  There is no court order in place and no court intervention.  Accordingly the Tribunal decided to proceed with the hearing.

THE ISSUES

 3.	(i)	Was the claimant unfairly dismissed on the basis of her pregnancy contrary to the relevant provisions of the Employment Rights (Northern Ireland) Order 1996?

	(ii)	Did the respondent discriminate against the claimant on the grounds of sex contrary to the Sex Discrimination (Northern Ireland) Order 1976?  

	(iii)	Was the claimant’s contract of employment, formed on 21 December 2007, for a fixed term of six months?

	(iv)	Was the claimant’s contract of employment unilaterally altered without her consent to give the impression that her employment was for a period of six months?

	(v)	What was the reason for the respondent dismissing the claimant from her job in June 2008?

	(vi)	On what date was the claimant dismissed?

	(vii)	Did the respondent take any steps in the workplace to facilitate the employment of a pregnant women?

	(viii)	Was the claimant sidelined and isolated within the workplace because she was pregnant?

FINDINGS OF FACT

 4.	(i)	The claimant was born on 10 March 1980.

	(ii)	She attended for an interview on 12 November 2007 for the post as a full time office administrator with Homevalue Supermarkets, Fintona.

	(iii)	The post advertised, and for which the claimant applied, was a permanent post.  In so concluding the Tribunal had regard to the following matters;-

(a)	The claimant so asserts.

(b)	Martina Rice, the Manager of the Homevalue Supermarkets Store and Cahal McCrory who interviewed the claimant both stated it was a permanent post.

(c)	The claimant produced a photocopy of a signed contract which was not a fixed term contract.

	(iv)	Martina Rice was pregnant at the time of the interview for the post of full-time office administrator.  She intended to give some of her duties to the newly appointed full-time office administrator when she was off on maternity leave.

	(v)	Later on 12 November 2007 the claimant discovered that she was pregnant.  She informed Cahal McCrory, the Floor Manager in Homevalue Supermarkets, Fintona, when he called to offer her the position as full-time office administrator.  He said he would have to refer the matter to Martina Rice.

	(vi)	On 13 November 2007 the claimant met with Martina Rice and Cahal McCrory.  Martina Rice proposed that the claimant take on a six month contract and after her maternity leave could apply to rejoin the business.  The claimant turned this down flatly.  The claimant further indicated her intention to have only a short maternity break of two to three months because of financial reasons.  Martina Rice offered the claimant a trial of one month and if she were successful she would get the full-time permanent post.  The claimant agreed to this proposal.  

	(vii)	The claimant started work on 19 November 2007.  In December 2007, having successfully completed the probation period the claimant’s post was confirmed as full-time office administrator.  She subsequently signed the statement of terms and conditions on 21 December 2007.  They recorded that the employment began on 19 November 2007.  They did not have any fixed period for the duration of the contract.

	(viii)	In February 2008 the claimant met with Martina Rice and Cahal McCrory to clarify roles during Martina Rice’s pregnancy leave.

	(ix)	On 22 February 2008 the claimant was told that the business was being sold; that Martina Rice would not be returning; and the claimant’s role would remain unchanged.  

(x)	The new owners, the second respondent, following a TUPE transfer, took over the business on 10 March 2008.  Craig Bennett and Eugene Donnelly from the second respondent company visited the premises.  They were advised that three members of staff were pregnant of which they were unaware.  The claimant explained that she was due to go off on maternity leave in June.  Eugene Donnelly said that would be a problem as Janice Hunter, the new manager, would be off for three weeks to get married from 28 June 2008.  

(xi)	On 13 March 2008 Eugene Donnelly enquired from Cahal McCrory the status of the claimant’s contract.  Cahal McCrory confirmed, having examined the contract, that the claimant was on a full-time permanent contract.  

(xii)	In March 2008, following the new owners’ take-over, there was a degree of unhappiness in the business between the new owners, their office manager and the existing staff.  A meeting was arranged involving the claimant, Patricia McCann, Cahal McCrory and Janice Hunter to discuss these matters.  It was agreed that everyone would start again on a better footing.  However, things deteriorated in March 2008.  

(xiii)	On 7 April 2008 Patricia McCann called in sick and the claimant had to work in the cash office which she had only previously done occasionally.  By reason of the pregnancy the claimant found the job in a confined area and at the desk very awkward.  On 11 April 2009 she told Mr Bennett she could not do the work in the cash office because of the pregnancy as she was then 32 weeks pregnant.

(xiv)	On 16 April 2008 Eugene Donnelly met with the claimant, Cahal McCrory and Janice Hunter.  The claimant raised the unhappy atmosphere in the office.  She also raised her inability to do the work in the cash office by reason of her pregnancy.  Eugene Donnelly told her to train Ashling Monaghan to do the work in the cash office so that she could return to her own job.  

(xv)	On 18 April 2008 Patricia McCann resigned.

(xvi)	On 29 April 2008 Janice Hunter queried the claimant about taking a day off to attend hospital for a scan in connection with her pregnancy even though such an arrangement had been made with the former employer.  She was told not to do it again.

(xvii)	From 11 April 2008 until 16 May 2008 the claimant continued to be required to work in the cash office even though she had trained Ashling Monaghan to do it as Ashling was given other duties.  The claimant found the work very difficult.  No allowance was made for her pregnancy and the effects it had on her.  

(xviii)	The 16 May 2008 was the claimant’s last day at work before she went on two week’s paid holiday followed by her maternity leave.  She had a discussion that day with Eugene Donnelly about her contract and statutory maternity pay.  The claimant indicated to Eugene Donnelly that she would be returning to work on 1 September 2008.  Eugene Donnelly expressed the view that three months maternity leave was a long time.  He told her that he wanted a meeting with her four weeks before she returned to work so that he could see if she had a job to come back to.  He also complained about having to get someone to train up to cover the claimant’s maternity leave.

(xix)	The claimant was very upset by reason of Eugene Donnelly’s attitude towards her as a pregnant mother.  She felt he had no regard for pregnant employees.  She was made to feel guilty about being pregnant; that she was wasting the company’s time by going on maternity leave; that the cause of all her difficulties was the fact that she was pregnant; and that she was being punished for bringing a baby into the world.  She went home very upset.

(xx)	The claimant’s baby was born on 18 June 2008.  On the same day she received a letter from the second respondent dated 5 May 2008.  The date is obviously incorrect as the letter refers to events that occurred on 21 May.  The letter was delivered by recorded delivery.  In the letter the second respondent indicated to her that her contract had ended on 19 May 2008.  

(xxi)	In the course of defending this claim the respondents have produced a copy of the claimant’s main terms and conditions of employment in which Clause 2 sets out the duration of the contract of employment as six months.

		The Tribunal is satisfied that this contractual document has been altered after the time that it was agreed and signed by the claimant.  It was altered by encircling the option of six months, some time after the second respondent became the owner of this business.  In so concluding the Tribunal had regard to the following matters;-

(a)	The claimant denies signing a contract with a fixed term of six months.

(b)	The claimant produced a copy of a signed contract in which there is no fixed period stipulated and the option of six months is not marked in any way.

(c)	Martina Rice, who acted on behalf of Homevalue Supermarkets, Fintona, in the appointment of the claimant and whose handwriting appears in the contractual document, except for the claimant’s signature, denies that the contract that she agreed with the claimant was for six months and asserts that it was a permanent contract.

(d)	Cahal McCrory, the Floor Manager in this business, examined the contract in March 2008, at the request of Eugene Donnelly, and there was no six months period stipulated or encircled.

(e)	The encirclement itself which is on the same document as the claimant had signed seems to be in a different type of pen.  This is consistent with the assertion made on behalf of the claimant that the staff used blue ballpoint pens whereas the managers used black fine liner pens.

(xxii)	The effective date of termination is 18 June 2008, the date of the receipt of the letter from the second respondent.

(xxiii)	The claimant’s net weekly wage is £200 gross and £180 net.

(xxiv)	The Tribunal’s finding is that the claimant was dismissed by reason of her pregnancy or maternity.  In so concluding the Tribunal had regard to the following matters;-

(a)	The claimant was pregnant at the time of her dismissal.

(b)	The respondents knew that she was pregnant at the date of dismissal.

(c)	Eugene Donnelly had complained about having to train someone up to cover for the claimant during her maternity leave.

(d)	The respondents had failed to deal with the claimant’s requests for allowance to be made for her pregnancy in relation to the duties that she had to carry out.  In fact the respondents ignored the fact of her pregnancy.

(e)	The second respondent’s reason for the dismissal of the claimant i.e. that her contract of six months had expired is not believable because -

(aa)	The Tribunal has found that the claimant entered into a permanent contract and not one for six months.

(bb)	But, even if the claimant had entered into a contract for six months, her contract in fact lasted seven months and the additional month is not explained by the respondents.

	(xxv)	During her maternity leave the claimant was in receipt of maternity allowance from the state.  The respondents were not responsible for paying that.  

	(xxvi)	The claimant’s declared intention was to return to work following her pregnancy on 1 September 2008.

	(xxvii)	From September 2008 the claimant sought other employment by checking with newspapers and online.  By reason of the type of work she was interested in and her inability to drive at that time she was limited in the jobs for which she could apply.  She did apply for a number of jobs and was not short-listed for any of them.  She remains unemployed.

THE LAW

 5.	(i)	It is unlawful to discriminate against another on the ground of sex (Article 3(1) Sex Discrimination (Northern Ireland) Order 1976).

	(ii)	A person discriminates against a woman if, during the protected period, i.e. from the beginning of her pregnancy to the end of the relevant period of maternity leave, on the grounds of her pregnancy the person treats her less favourably, or 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 (Article 5A Sex Discrimination (Northern Ireland) Order 1976 as amended).

	(iii)	Where a Tribunal finds a complaint of sex discrimination well founded and it considers it just and equitable it shall require the respondent to pay to the complainant such compensation as a county court would order to be paid had the claim been brought in the county court (Article 65 of the Sex Discrimination (Northern Ireland) Order 1976).

	(iv)	Compensation for sex discrimination may include damages for injury to feelings (Article 66(4) Sex Discrimination (Northern Ireland) Order 1976).

	(v)	An employee dismissed by reason of pregnancy or child birth or maternity shall be regarded as unfairly dismissed (Article 131 The Employment Rights (Northern Ireland) Order 1996 and Regulation 20(1) Maternity and Parental Leave etc Regulation (Northern Ireland) 1999 (No 471)).

	(vi)	The one year qualifying period in order to bring a claim for unfair dismissal does not apply were Article 131 applies (Article 140(3) The Employment Rights (Northern Ireland) Order 1996).

	(vii)	Where a Tribunal finds a complaint of unfair dismissal well founded it shall require the respondent to pay to the complainant compensation (Article 146 The Employment Rights (Northern Ireland) Order 1996).

	(viii)	An Order for compensation of unfair dismissal shall comprise a basic award and a compensatory award (Article 152 The Employment Rights (Northern Ireland) Order 1996).

	(ix)	Arising from an unfair dismissal the amount of the compensatory award shall be such as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the employee in consequence of the dismissal (Article 157(1) The Employment Rights (Northern Ireland) Order 1996).

	(x)	In assessing compensation where the employee has been unfairly dismissed and has suffered an unlawful discrimination the Tribunal has the choice of making an unfair dismissal compensatory award or a discrimination compensatory award.  In general a claimant is likely to be better off if the award is made wholly on the basis of the discrimination, and this consideration may weigh with Tribunals faced with a choice (Harvey on Industrial Relations and Employment Law L [516]).

	(xi)	Compensation for injury to feelings falls into three broad bands; the top band ranges between £15,000 and £25,000 and is for the most serious cases such as where there has been a lengthy campaign of discriminatory harassment; the middle band between £5,000 and £15,000 for serious cases that do not merit an award in the highest band; and the lower band between £500 and £5,000 for less serious cases such as where the act of discrimination is an isolated or a one off occurrence (Vento  v  Chief Constable of West Yorkshire Police (No. 2) [2003] IRLR 102 CA).

	(xii)	In Miles  v  Gilbank [2006] ICR 12 EAT at paragraph 12 Judge Pugsley stated;-

		“We make the point, if we may, that actually the Vento case is now three years old and that is a point which is of relevance because, whilst we do not have raging inflation which has been known in various stages of the country’s history, we nevertheless do have quiet inflation which devalues monetary values.”

		On appeal the Court of Appeal affirmed the decision of the Employment Tribunal and the EAT.  It did not make any adverse comment about the EAT’s comments about inflation.  Arden LJ stated at paragraph 41;-

		“… The guidance laid down by this court in Vento was not intended to be applied like rules of law.”

		In Northern Ireland an industrial tribunal has followed the approach set out in Miles  v  Gilbank in the case of Pauline Girvin  v  Carrickfergus Borough Council – Support Services – Case Ref: 1696/07.  The Tribunal stated at paragraph 48;-

		“During the five years since the determination in Vento, the retail price index has increased by approximately 9%.  On that basis, the middle band should now be from £5,500 to £16,000 approximately.”

	(xiii)	In ascertaining the loss suffered by the employee the Tribunal shall apply the same duty to mitigate the loss as applies to damages recoverable under the common law of Northern Ireland.

	(xiv)	Under Regulation 3(1) of the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination cases) Regulations (Northern Ireland) 1996 No. 581 a Tribunal may include simple interest on an award made and shall consider whether to do so without the need for any application from the parties.

	(xv)	Any interest awarded under the discrimination legislation shall be awarded, for injury to feelings, from the date on which the discrimination began.  In relation to other sums of damages or compensation interest shall be awarded from the mid-point between the date on which the discrimination began and the calculation date (Industrial Tribunals) (Interest on Awards in Sex and Disability Discrimination cases) Regulations (Northern Ireland) 1996 No. 581).  

APPLICATION OF THE LAW AND THE FINDINGS OF FACT TO THE ISSUES

 6.	(i)	The claimant began employment with Homevalue Supermarkets Fintona on 19 November 2007 as a full-time office administrator on a permanent contract of employment.

(ii)	The claimant became aware that she was pregnant on 12 November 2007.  The claimant’s maternity leave began on 1 June 2008.  The baby was born on 18 June 2008.

(iii)	Following a TUPE transfer in March 2008 her contract of employment was transferred to the second respondent and she remained on the same terms and conditions of employment.

(iv)	From 14 April 2008 the second respondent failed to take any steps to address the difficulties the claimant was experiencing in doing the work in the cash office by reason of her pregnancy. 

She continued to have to do that work until she went on holiday leave on 16 May 2008.  The suggested solution of Eugene Donnelly of training Ashling Monaghan to do the work was ineffective in that although the claimant trained her she was allocated other duties by the second respondent and the claimant still had to do the work in the cash office.

(v)	The claimant was dismissed by the second respondent on 18 June 2008 when she was on maternity leave.

(vi)	The Tribunal rejects the second respondent’s explanation that the termination was by reason of the ending of a six month contract of employment following the findings set out above.

(vii)	The second respondent’s treatment of the claimant, its negative comments about pregnancy and maternity leave, its failure to address effectively the difficulties experienced by the claimant in doing her work by reason of the pregnancy from 14 April 2008 and her dismissal amount to less favourable treatment.    

(viii)	In the absence of any other reason appearing and in light of the second respondent’s negative comments and attitude towards pregnancy and maternity leave the Tribunal accepts that the less favourable treatment suffered by the claimant, at the hands of the second respondent, was on the grounds of the claimant’s pregnancy or because she was seeking to exercise or exercising her right to maternity leave.

(ix)	The less favourable treatment of the claimant from 14 April 2008 and her dismissal by reason of her pregnancy or exercising or seeking to exercise her right to maternity leave by the second respondent constitute sex discrimination.

(x)	The Tribunal is satisfied that the claimant sought to mitigate her loss.

(xi)	In the current economic climate the Tribunal is persuaded that a future loss of 26 weeks is appropriate.

Unfair Dismissal

(xii)	The claimant was dismissed by the second respondent by reason of her pregnancy or maternity and this amounts to automatic dismissal under Article 131 of The Employment Rights (Northern Ireland) Order 1996.

(xiii)	The one year qualifying period to ground a complaint of unfair dismissal does not apply where Article 131 of The Employment Rights (Northern Ireland) Order 1996 applies.

(xiv)	The claimant is not entitled to a basic award as she does not have at least one year’s continuous employment.

(xv)	Under the unfair dismissal legislation the claimant is entitled to a compensatory award.  However where an employee has suffered an unfair dismissal and unlawful discrimination the Tribunal may make the compensatory award under the discrimination cause of action.  The Tribunal proposes to follow that approach and sets out the compensatory award below.

Unlawful Discrimination

(xv)	Compensatory Award

Loss of earnings from 1 September 2008 to 18 August 2009.

£180 x 50						= £ 9,000.00

Future Loss

Loss of earnings from 19 August 2009 to 17 February 2010

£180 x 26						= £ 4,680.00

Total loss of earnings				= £13,680.00

Total compensatory award				= £13,680.00

Interest on compensatory award			= £     743.25

Total compensatory award plus interest		= £14,423.25

Injury to Feelings

(xvi)	In assessing the appropriate level of compensation due to the claimant by way of injury to feelings the Tribunal had regard to the following matters;-

(a)	Arising from the Tribunal’s findings and conclusions it is clear to the Tribunal that the discrimination from which the claimant suffered was serious.

(b)	The Tribunal is satisfied that the claimant was greatly upset arising from the discriminatory treatment to which she was subjected.  Among the ways this manifested itself were as follows;-

(i)	The second respondent did not have consideration for pregnant staff.

(ii)	The claimant felt that her unborn child was being blamed for her possibly losing her job.

(iii)	She was made to feel guilty that she was wasting the second respondent’s time by going on maternity leave.

(iv)	She felt she was enduring difficulties at work because she was pregnant.

(v)	She felt she was being punished for bringing a child into the world.

(vi)	At times the claimant was crying a lot because of these events.

(c)	The appropriate Vento band is the middle band.

The Tribunal in applying the Vento band allowed for inflation of 9% since the determination of Vento.

(d)	This is an appropriate case where interest of 8% per annum should be added to the award for injury to feelings pursuant to Regulation 3(1) of the Industrial Tribunals (Interest on Awards in Sex Discrimination Cases) Regulations (Northern Ireland) 1996 No. 581.  Interest should be payable from 14 April 2008 to 4 September 2009.

(e)	The Tribunal awards £8,000 for injury to feelings.  It also awards simple interest of £889.60 making a total award for injury to feelings of £8,889.60. 

(xvii)	The Tribunal orders that the compensation be paid by the second respondent to the claimant.  It dismisses the claims of unfair dismissal and sex discrimination against the first respondent because he was not the claimant’s employer and there was not any evidence to involve him personally in the sex discrimination suffered by the claimant.

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

Chairman:

Date and place of hearing:	17 and 18 August 2009, Belfast.

Date decision recorded in register and issued to parties: