THE INDUSTRIAL TRIBUNALS 

CASE REF:	37/09

CLAIMANT):	Judith Alexandra Hitch		

RESPONDENT:	Karl Smyth 		

DECISION

The unanimous decision of the tribunal is that the claimant was discriminated against on the basis of her sex and was unfairly dismissed and is entitled to compensation of £8624.35

Constitution of Tribunal:

Chairman:			Mr Cross	

Panel Members:		Miss Mulligan 
				Mr Law	

Appearances

The claimant was represented by Mr McAvoy, Barrister-at-law, instructed by the Equality Commission.

The respondent appeared in person and was not represented.

Evidence

The tribunal heard the evidence of the claimant and Mrs Joyce Hitch, on behalf of the claimant, Ms Sarah Smyth and Ms Emma Beck on behalf of the respondent.

Findings of fact

1.   	The claimant was employed as a kennel hand in the respondent’s veterinary clinic and kennels, from December 2006. She had been studying for a NVQ in Animal Care at the same time, working for the respondent 4 days a week and attending the college on the other day. 

2.		On 2 November 2007 the claimant went on maternity leave and her son was born  on 23 January 2008.In June 2008 the claimant wrote to the respondent seeking a  change in the hours and days of work when she returned from maternity leave. She was due to return to work in August 2008. Accordingly she arranged to meet Sarah Smyth the practice manager on 1 August to make the necessary arrangements for her return. At the meeting the claimant stated that she would like to change her hours to fit in with her child minding arrangements. She had already alerted the respondent of this in June in her letter. The hours that the claimant wanted were 3 days a week from 10 to 4. Sarah Smyth explained that the hours for the job were 8-4 and that the practice could offer her two days at those hours namely Thursday and Friday. The claimant explained that it was important for her to return to work as the college required her to complete her practical placement before she could get the NVQ.

3.   	After a certain amount of discussion it became clear to the claimant that she was only going to be offered the two days at the unsuitable hours. The claimant explained to Ms Smyth that she was keen to return to work, even if only for a short term, until she could get work nearer home. Ms Smyth then told the claimant that she could not offer the claimant as many days as before, as the respondent had employed a new person, when the claimant went on maternity leave and that person was doing the other days previously covered by the claimant. Ms Smyth also mentioned the fact that the claimant had had a number of warnings regarding time keeping, before she had gone on maternity leave and the new employee had proved to be a better time keeper. Furthermore, with regard to the hours requested by the claimant, Ms Smyth explained that the busy time of the day was the early morning, when the dogs had to be fed and the kennels cleaned out. This would make it difficult for the respondent to facilitate the claimant with regard to the changed hours requested by her.

4.	The meeting became somewhat fraught as the claimant became tearful, as she tried to explain that the poor time keeping was linked with her pregnancy and that she found it difficult to access the kennels as her pregnancy progressed. The claimant was under the impression, that as the timings for work were not going to be suitable for the claimant, that  the respondent was keen that she would resign. Ms Smyth asked the claimant what she would do and the claimant said that her only option was to go to her Doctor and get another sickness certificate to allow her more time to sort things out. At this point the claimant left the meeting, going out to the car park where her Mother was waiting, leaving Ms Smyth with the impression that she had resigned.

5.   	On 16 September, the claimant’s mother telephoned to the practice and had a somewhat acrimonious discussion with Ms Smyth, the outcome of which was that Ms Smyth told Mrs Hitch that her daughter had resigned. This was the first indication that the claimant had, that her employer was assuming that she had resigned.

6.   	Before Ms Smyth’s interview with the claimant on 1 August she had heard from another employee and friend of the claimant, Emma Beck concerning what Emma thought were the claimant’s intentions. Ms Beck told the respondent the claimant had sent her a text, to the effect that the claimant intended to resign and use up her notice period by signing in sick. 

7.   	The respondent sent the claimant her P45 on 16 September 2008, the same day   as the conversation between Ms Smyth and Mrs Hitch. The respondent never tried to contact the claimant after the meeting of 1 August. The claimant told the tribunal that she did not hand in her notice to the respondent but intended to return to sick leave. The evidence of the respondent was, that when the claimant could not get the changed hours that she wanted for the three days per week, she said that she would hand in her notice and provide a sickness certificate for the notice period. The tribunal prefer the evidence of the claimant as she needed to work in the practice to complete her NVQ. Furthermore the respondent was aware, from the earlier telephone conversation, that the claimant was looking for changed hours. The respondent made no real effort to bring the claimant back to work after her maternity leave and introduced the complaints about the previous performance of the claimant and the excellence of the replacement employee, as justification for not considering alternative work arrangements even, for a short introductory period. The tribunal accept that the early morning is a busy time for the respondent.

The Law

8.	The Sex Discrimination (Northern Ireland) Order 1976 (hereinafter “the 1976  Order”) provides as follows:-

5A — (1) In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if —    

(a)      at a time in a protected period, and on the ground of the woman's pregnancy, the person treats her less favourably than he would treat her had she not become pregnant; or

(b)      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 than he would treat her if she were neither exercising nor seeking to exercise, and had neither exercised nor sought to exercise, such a right.

(2)      In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if, on the ground that Article 104(1) of the Employment Rights (Northern Ireland) Order 1996 (compulsory maternity leave) has to be complied with in respect of the woman, he treats her less favourably than he would treat her if that provision did not have to be complied with in respect of her. 

(3)      For the purposes of paragraph (1) — 

(a)      in relation to a woman a protected period begins each time she becomes pregnant, and the protected period associated with any particular pregnancy of hers ends in accordance with the following rules — 

(i)	if she is entitled to ordinary but not additional maternity leave in connection with the pregnancy, the protected period ends at the end of her period of ordinary maternity leave connected with the pregnancy or, if earlier, when she returns to work after the end of her pregnancy;

                         		(ii)       -------------------------------------

9.     In order to establish whether an act of discrimination has been committed against an employee, Article 63A of the 1976 Order provides:-
 
“63A (2) Where on the hearing of the complaint the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent-

(a)	has committed an act of discrimination against the complainant which  is unlawful [by virtue of the 1976 Order]

(b)	---------------------------------------

      	the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed, that act”

		Thus the tribunal, in deciding whether there has been an act of discrimination on the part of a respondent, must first decide whether the claimant has proved a prima facia factual situation which could suggest discrimination. The burden of proof then moves to the respondent to show to the tribunal that he did not so discriminate against the claimant.

10. 	Article 112F of the Employment Rights (Northern Ireland) Order 1996 (hereinafter     “the 1996 Order”) provides that certain employees have the right to apply for a change in their terms and conditions of employment. These provisions apply to, amongst others, an employee who has been continuously employed for a period of not less than 26 weeks and is the mother of a child, having responsibility for the child’s upbringing, (Flexible Working (Eligibility, Complaints and Remedies) Regulations (Northern Ireland) 2003). Provisions are made for the processing of these applications and are set out in Flexible Working (Procedural Requirements) Regulations (Northern Ireland) 2003. These two sets of Regulations provide for written request for the flexible working and the holding of a meeting to consider the request and written notice of the decision of the employer after the meeting. 

11. 		Turning now to the claim that the claimant was Unfairly Dismissed, under the 
      		provisions of Article 126 of the1996 Order, “An employee has a right not to be unfairly  dismissed by his employer.” Article 130 of the 1996 Order states that it is for the employer to show that the reason for the dismissal is either a reason relating to the employee’s capability to do the job in question, his conduct, or because of a redundancy situation, or some other substantial reason, as to justify the dismissal of an employee, holding a position of the type held by the employee in question. 

		Certain dismissals are declared by Statute to be automatically unfair. One such is where the employer fails to comply with the terms of Article 130A of the 1966 Order. This states that a dismissal is to be regarded as unfair, if  one of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (“the 2003 Order”), has not been complied with and the non compliance is wholly or mainly attributable to the failure of the employer/ respondent. The procedure referred to in Schedule 1 of the 2003 Order provides for the employer to give written information to the employee as to its reason for wishing to terminate the employment of the employee and to invite the employee to a meeting to discuss the matter. The meeting must take place before the action of dismissal is implemented and if the employee is still intent on dismissing the employee it must give the employee a right of appeal. If it fails to carry out this procedure then the subsequent dismissal is automatically unfair.

12.  		If the tribunal is satisfied that the claimant has been unfairly dismissed then it can  award the claimant compensation, payable by the respondent

Decision

13.		The tribunal having weighed the evidence of the parties, holds that the claimant 
       	has discharged the obligation placed upon her under Article 63A of the 1976 Order and has proved, to the satisfaction of the tribunal that there is prima facia evidence of sex discrimination on the part of the respondent, in the conduct of the respondent and his manager Ms Smyth. After the claimant had alerted the respondent to her wish to return to work after her maternity leave, which is her statutory right, the return to work interview, was less than satisfactory. The tribunal accept that comparison was made between the claimant and her replacement, which reflected unfavourably on the claimant and that her employment record for the period before her maternity leave was touched upon. All this has persuaded the tribunal to the view, that the claimant has satisfied the test, on the evidence accepted by the tribunal, of a prima facia case of discrimination. 

14. 	The tribunal then looked at the explanation of the respondent, in his task of refuting the evidence of the claimant and his answer to the charge that he discriminated against her. Does the evidence of the respondent’s witnesses show that he did enough to discharge the burden of proof laid on him and give a non discriminatory reason for the ending of the claimant’s employment? The tribunal hold that the evidence of the respondent’s witnesses does not discharge this burden. The claimant asked for rearranged hours which the respondent found hard to sanction. However no real attempt was made to meet the request of the claimant. This might have been disadvantageous to the respondent as he clearly wanted to keep the replacement kennel hand whom he preferred to the claimant, but he was required to take back the claimant. The respondent should also have carried out the procedure laid down in Article112F and the associated Regulations referred to in Paragraph 10 above.

15.  	It was very convenient that the claimant appeared to resign, as Ms Smyth saw the situation. However the claimant was in an upset state and was not, in the opinion of the tribunal in a proper state of mind to tender her resignation. She needed to have the kennel job to complete her college course and indeed wanted to return to work. She got upset and may have said that she would take further sickness absence. This Ms Smyth took to be her resignation. The tribunal are of the firm view that after an emotional return to work interview, such as this one was, some one from the respondent should have spoken again to the claimant and not merely accepted what was assumed to be a tearful resignation on its face value. The respondent should have contacted the claimant, preferably in writing, explaining her right to return to work in her previous job and suggesting another discussion to try and resolve the working times. If after this had been done and it had been made clear that the replacement was not getting priority over the returning claimant and even if the timings could not be agreed and the claimant did offer her resignation, that is the sort of action that the tribunal would have expected to see from the respondent, to discharge the burden of proof that the law places on him in a situation such as this.

16.  	The tribunal is satisfied, that the respondent, having heard from Ms Beck that the claimant was considering a job nearer home and taking further sick leave and preferring the replacement kennel hand, was content to conduct the return to work interview in such a way as to illicit a situation in which a resignation could be read into the claimant’s comments. This is the type of case, where the requirement on the respondent to discharge the burden of proof, that he did not discriminate, is very helpful to a tribunal in reaching its decision.

17. 		Having reached the decision that the claimant was discriminated against, the 
      		tribunal turned to the actual termination of the claimant’s employment. The tribunal hold that the claimant did not resign. The respondent thought that she had resigned but the tribunal hold that the receipt by the claimant of the P45 was her dismissal. Clearly there was a misunderstanding between the claimant and the respondent, in that Ms Smyth on behalf of the respondent was under the impression that the claimant had resigned, whilst the claimant was adamant that she did not resign. The tribunal having held that the claimant did not resign now have to deal with the Unfair Dismissal. The tribunal hold that because none of the statutory procedures were adhered to that the dismissal was automatically unfair. The claimant merely received her P45 in the post as the respondent had wrongly assumed that she had resigned. Accordingly none of the statutory requirements were complied with. 
   
18. 		The tribunal then considered compensation for the claimant. Whilst she was working with the respondent she was doing occasional bar work at Carrickfergus Cricket Club. She was able to continue this work and indeed got some additional hours after she lost her job with the respondent. Part of the bar wages are therefore deducted from her loss, as work in mitigation of loss. The claimant has to complete an apprenticeship in order to complete her NVQ. She signed an agreement with the respondent that she would work for him from 15 January 2007 to 26 December 2012. The tribunal hold, that although this agreement states that it is not a contract of employment between the parties, the claimant could have been expected to have been employed for at least another year, from the date of dismissal under the agreement, until 31 August 2009. After that date the claimant should be able to obtain a similar contract with another veterinary clinic. The calculation of loss is set out in the Schedule below.

19. 	Because the claimant, in the view of respondent, resigned the statutory procedure 
           to consider alteration of contractual terms on return from maternity leave was not completed and consequently the respondent could be considered to be in breach of Article 112F of the 1996 Order. Such a breach carries certain monetary sanctions. However the tribunal does not award compensation for this breach as it holds that the respondent did genuinely, if mistakenly, believe that the claimant had resigned. The compensation is therefore awarded for Sex Discrimination and Unfair Dismissal.

20. 	With regard to the award for injury to feelings the tribunal bore in mind the small size of the business of the respondent and the guidance given to tribunals in the case of Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102, which suggested three levels of compensation for injury to feelings. The tribunal is of the view that this discrimination falls within the lowest of the three bands. The tribunal award to the claimant £3000-00 compensation for injury to feelings. The tribunal having considered the matter of interest up to the date of this decision do not award this as in the tribunal’s view it would not be appropriate.  

Schedule

Basic Award unfair dismissal.
One weeks gross salary                                                                       £138.33

Compensatory Award 
Loss of salary at £4.60 per hour 31 August 08 -  1 October 08
29 hours per week 29x £4.60 x 4 weeks                                              £533.60
Loss of salary at £4.77 per hour 1 October – 31August 09
29 hours per week 29x £4.77 x 48 weeks                                          £6639.84

                                    Total compensatory calculation                      £7173.44
Less extra earnings at Cricket Club                                                    £1687.42

Total Compensatory award                                                                £5486.02

Add Basic Award                                                                                  £138.33

Injury to Feelings                                                                                £3000.00
                                                                                                          ------------------Total                                                                                                   £8624.35

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

Chairman:

Date and place of hearing:       24 & 25 June 2009, Belfast.

Date decision recorded in register and issued to parties: