Harney v A Donnelly Ltd [2009] NIIT 105

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THE INDUSTRIAL TRIBUNALS

CASE REF: 105/08

CLAIMANT(S): Richenda Harney

RESPONDENT(S): 1. A Donnelly Limited

2. Adrian Donnelly

DECISION

The unanimous decision of the tribunal is that the claimant was subjected to unlawful discrimination on the grounds of her pregnancy and was victimised contrary to the provisions of the Sex Discrimination (Northern Ireland) Order 1976. The tribunal awards the claimant £7500 for injury to feelings plus interest of £685.48 Further she is owed £1000 in respect of unpaid bonus. The first named respondent failed to investigate the claimant’s grievances. The Tribunal therefore awards the claimant compensation totalling £10104.03.

The second named respondent is dismissed as a party from these proceedings as he was not the claimant’s employer.

Appearances:

The claimant appeared and represented herself.

The respondent was represented by Mr Sheridan of Peninsula Business Services Limited.

1. The issues to be determined by the tribunal were agreed at a Case Management Discussion on 21 April 2008 as follows:-

(a) Whether the first named respondent discriminated against the claimant on grounds of her sex when the claimant informed the respondents of her pregnancy.

(b) Whether the second named respondent personally discriminated against the claimant on grounds of her sex when the claimant informed them of her pregnancy.

(c) Whether the respondents and each of them subjected the claimant to unlawful sex discrimination in and about the investigation of her grievances in October 2007.

(d) Whether the respondents and each of them failed to adequately investigate the claimant’s grievances.

(e) Whether the Respondents and each of them otherwise failed to make adequate provisions for the investigation of the claimant’s complaints.

2. The parties indicated at the outset of the hearing that there had been a development in that the claimant had resigned her position with effect from 31August 2008 and she was now considering whether to lodge with the Office of the Tribunals a further originating complaint that she had been unfairly constructively dismissed by the respondent. The tribunal heard submissions from the parties and it was clear that any complaint of unfair dismissal would be grounded on the same facts as her current complaints. Although the tribunal was concerned that the claimant had raised the possibility of lodging fresh proceedings at this late stage, it allowed time to the claimant to seek advice from the Labour Relations Agency concerning her potential claim of unfair dismissal and whether she wished to apply for an adjournment to enable a complaint of unfair dismissal to be lodged. When the tribunal reconvened the claimant confirmed that she had taken advice, had considered her position and had decided that she did not wish to pursue a claim of unfair dismissal. The hearing therefore resumed.

3. The tribunal considered the statements and oral evidence of witnesses in the following order: Mrs Pauline Brennan, the claimant Mrs Richenda Harney, Mr Adrian Donnelly, Mrs Beth Milligan, Mrs Aileen O’Neill and Ms Catherine (Kate) Donnelly. The tribunal was also referred to documents contained in two agreed bundles and the claimant’s Schedule of Loss which was not agreed. The tribunal read a witness statement of Mr Terry O’Neill as this was referred by Mr Donnelly and Ms Donnelly in their statements. However the tribunal afforded no weight to Mr O’Neill’s statement because he did not attend at the hearing.

4. The tribunal made the following findings of relevant fact on a balance of probabilities:

5. The claimant commenced employment with the first named respondent, a company which specialises in ceramic tiles and marble, on 1 January 2001 as full time Business Development Manager for the ADL Group of companies. Her main duties were to develop a marketing and advertising strategy for the respondent company and other companies in the ADL Group, and coordinated the first named respondent’s Christmas campaign, Children in Need and attended events such as the RDS in Dublin. She also had responsibilities for production in ADL Stoneworks Limited ( the “Stoneworks”), an associated company of the respondent. She worked closely with the Managing Director Mr Adrian Donnelly and had contact with him on almost a daily basis up until October 2006.

6. Her basic salary was £26,000.00 per year with a company car and mobile phone. The claimant was entitled to an annual bonus, which up until 2006 was calculated by splitting the profit over a certain figure between members of the senior management team. In 2003/2004 the claimant was paid a bonus of £12,581; in 2004/2005 she received £13,775.00 and in 2005/2006 she received £6765.00. The claimant’s contract provided that as a senior manager who had been in employment with the respondent before December 2000 she qualified for the occupational maternity policy by which she continued to receive all of her contractual benefits during her maternity period.

7. In 2006 the first named respondent renegotiated contracts individually with each of its employees as to the manner in which each person would be paid a bonus. Appendix A to the claimant’s renegotiated contract provided that she was entitled to be paid a percentage of profits made by ADL Stoneworks in two stage payments in the financial year payable in October and March, based on achievement of a minimum target of £25,000.00 profit. The first stage payment under this agreement was due in October 2006. The tribunal preferred the claimant’s evidence that when she approached Mr Donnelly when she was not paid the first stage payment in October 2006, he told her that she would be paid the same amount of bonus as had been paid to Mrs Beth Milligan, the Finance Manager, and Mrs Yvonne McCreesh, the Purchasing Manager, who were also members of the senior management team. This was agreed by the claimant. The claimant was paid £2,000.00 in respect of her bonus in December 2006. She subsequently learned that Mrs Milligan and Mrs McCreesh were each paid a bonus of £3,000.00 net, which was not calculated in accordance with their respective contracts. Accounts provided by the respondent showed that there was an operating profit of £57,223 in the financial year 06/07 and in 07/08 an operating loss of £9,250. The tribunal accepted the respondent’s evidence that no further bonus was subsequently paid to either Mrs McCreesh or Mrs Milligan.

8. The claimant had a period of maternity leave from 9 November 2006 to 9 May 2007 relating to her first child. The claimant accepted that she experienced no adverse treatment by Mr Donnelly following the announcement of her first pregnancy and maternity leave or after her return to work. She subsequently became pregnant again and informed Mr Donnelly of her pregnancy at the beginning of September 2007. The respondent appointed Ms Ann McBride who commenced employment with the respondent on 17 September 2007 as a salesperson on a salary of £18,000 per year. The respondent’s case was that she was taken on to provide temporary cover for a former member of the sales team who had left the company and that a deliberate decision was taken by the respondent not to fill this post permanently as those staff affected by rationalisation plans may wish to consider this post as an alternative to redundancy. Her duties included attending trade shows (at various locations) to promote ADL products and services.

10. On 12 October 2007 Mr Donnelly called the claimant into a meeting. There was a dispute about what Mr Donnelly said at this meeting. The claimant’s evidence was that he told her that either he could give her six weeks notice or that he would accept her resignation, that there was no problem with her work but that cut backs had to be made and a decision had been made to close the marketing department. The claimant enquired whether there was any other job in the company that he felt she could do and he responded that it was a difficult decision but that he had to make cut backs. He indicated that he had already spoken to Mr Terry O’Neill the manager of Stoneworks and that he was “in the same boat” and that he would be speaking to other members of staff that day in similar terms. The claimant became very distressed and pointed out to him that it would be difficult for her to get another job when she was six month’s pregnant. She enquired as to the payment of monies due to her, including three overdue bonuses payments, Mr Donnelly told her that the amount would be calculated by Ms Milligan and that he would meet with the claimant early the following week. Mr Donnelly called his PA, Mrs Aileen O’Neill into his office to help settle the claimant. He asked her to ring Peninsula and the tribunal accepted the claimant’s evidence that this was to ask as to her redundancy entitlement but that they were unable to give this information at this time. Mr Donnelly asked Ms O’Neill to give the claimant a lift home because she was so upset.

11. It was the claimant’s belief that Mr Donnelly told her male colleagues that their employment was to be terminated. Mr Donnelly confirmed to the tribunal that he did meet with other employees that day including Mr Damien Rafferty, Contracts Assistant in the Stoneworks, Terry O’Neill, Stoneworks and Logistics manager, Mr Michael Trainor and Mr Donate Toner who were Storemen/Warehouse Operatives in the Stoneworks.

Mr Donnelly denied that he told the claimant that she was being made redundant and that he simply wished to discuss his concerns about the downturn of business being experienced by the first named respondent and in the Stoneworks factory. Later that evening Mr Donnelly spoke to Ms Kate Donnelly, Head of Human Resources and Mr Donnelly’s sister. Both told the tribunal that she was unhappy at his discussions with staff and told him not to have any more contact with the claimant until they assessed the position of the company and ways of averting redundancies. Mr Donnelly alleged that after 12 October 2007 the claimant became confrontational towards him demanding a reference and details of her redundancy entitlement and that she deliberately misinterpreted what he had said. Consequently he decided to leave the situation to Ms Donnelly to deal with due to his concern for her unborn child.

12. Having carefully considered the evidence the tribunal preferred the evidence of the claimant because it considered that the actions of both the claimant and Mr Donnelly and Ms Kate Donnelly following this meeting were consistent with Mr Donnelly having told the claimant that her position was to be terminated due to redundancy. Ms Milligan and Ms O’Neill both confirmed in their evidence that they understood at this time that the claimant had lost her job. On 15 October 2007 the claimant emailed Mr Donnelly enquiring when the meeting was to take place and requesting details of the bonus due and the terms of her redundancy and financial package and a reference. She also enquired as to what work she was expected to carry out during the next six weeks. The claimant followed this up with a telephone call and further emails on 16October 2007 which were copied to Ms Donnelly. Ms Donnelly responded by email dated 16 October 2007 in which she suggested that they met the following day and she stated “I cannot answer the question on your bonuses and it may be difficult to give you exact figures on the redundancy payment as this will have to be calculated and approved but I hope to give you some idea by then”.

13. The claimant met with Mr Donnelly and Ms Donnelly the following day (17 October). In the opening sentence of the minutes of this meeting the claimant was told that her position was not redundant. The tribunal doubts that the minutes are accurate in this regard. The claimant denied that this was said at the meeting and pointed out that she was not furnished with a copy of these minutes until after her proceedings were issued. The tribunal further noted that the main body of the discussion was taken up with discussion around the claimant’s bonus and redundancy entitlement. The claimant raised the issue of the bonus paid to her from April 2006 to October 2006 and that she had been paid £2,000.00 whereas Mrs McCreesh, and Mrs Milligan, had both been paid £3,000.00. It was explained to the claimant that £2,000.00 was a first stage payment and when the accounts had been completed and the bonus calculated in accordance with Appendix 1 of her contract it was discovered that she had in fact been overpaid by £2.31 in respect of bonus due for the year ending 31 March 2007 and as the respondent company was now making a loss no further payments were due to her. When the claimant queried this and her redundancy pay calculation, Mr Donnelly accused the claimant of telling Mrs Milligan that she did not know her job. Mrs Milligan was present and confirmed at the hearing that the claimant had not said this about her. The tribunal accepted the claimant’s evidence that Mr Donnelly in effect taunted the claimant when he asked her whether she wanted to be paid what was stated on the sheet or what he thought was fair. Later that day Ms Donnelly emailed to the claimant a reference prepared by the respondent for the claimant together with a calculation of her entitlement to redundancy pay, notice pay, holiday pay and bonus. It was not disputed that the claimant was extremely distressed during this meeting and the following day she was signed off work by her GP for two weeks until 1 November 2007 due to stress related illness.

14. On 23 October 2007 the claimant wrote to Mr Donnelly appealing against her dismissal. She disputed that there was a genuine redundancy situation and that there was a cessation or diminution of her duties. She asserted that there was still a requirement to market the company as the respondent had recently recruited a new employee (Ms Ann McBride) in sales. In the alternative she contended that if there was a genuine redundancy situation that she was not fairly selected, there was no prior consultation and further, there was a departure from the respondent’s own redundancy policy. She contended that the real reason for her selection was because she had recently announced that she was pregnant and that she considered that she had been discriminated against on grounds of sex. The claimant sent a grievance letter dated 24 October 2007 complaining as to the manner in which she had been treated by Mr Donnelly. She alleged that since she had returned from her first maternity leave she was treated differently by the Respondent and that she was not made privy to various meetings that she would have normally been asked to attend and that since announcing her pregnancy in September 2007 Mr Donnelly had barely spoken to her culminating in her dismissal on 12 October 2007. She complained that she had not been paid her correct bonus entitlement. Ms Donnelly sent a letter to the claimant dated 1 November 2007acknowledging receipt of these letters and advising that “I will revert to you in due course”. Ms Donnelly confirmed that she did not respond further to either letter. She told the tribunal that this was because she considered that the issues raised were dealt with at the meeting with the claimant on 17 October 2007. Mr Donnelly told the tribunal that he did not respond to these letters because he did not wish to upset the claimant again and that around this time he was out of the office a lot seeking new business. It was however conceded that the respondent failed to comply with the requirements of the statutory grievance procedure.

15. On 4 November 2007 Ms Donnelly authorised the claimant to take time off work to seek alternative employment. On 12 November 2007 the claimant sent a further email to Kate Donnelly as a pre-arranged meeting for that day between herself, Kate Donnelly and Adrian Donnelly did not take place because neither turned up. The claimant raised the issue that she had received no contact with Mr Donnelly since 17 October 2007 and that he had not turned up to a meeting arranged to discuss the Christmas campaign. On 16 November 2007 the claimant sent a further email to Mr Donnelly copied to Ms Donnelly expressing concern that she had not been informed about the amount of outstanding bonus due to her. In this she stated, “as I was verbally told I was made redundant on the 12 October 2007 with six weeks notice I can only assume my last date of work is next Friday 23November, please confirm”.

16. It was the respondent’s case that during early to mid 2007 it went through a process leading to rationalisation plans which were reduced to writing in a report dated November 2007 and that it was not decided that the claimant’s role was surplus to requirements until that date. Ms Donnelly sent an email to the claimant on 20 November 2007 inviting her to a meeting on 22 November. In response to the claimants request for clarification, Ms Donnelly advised that the purpose of the meeting was “to explain the position of the company currently and future trends in the business”. The meeting of 22 November 2007 took place between Adrian Donnelly, Kate Donnelly and the claimant. Mrs O’Neill was present at the meeting to take notes. Ms Donnelly outlined the financial difficulties facing the respondent due to the current economic climate and explained to the claimant that “it was likely that the position of Marketing/Business Development Officer was at risk of redundancy as a result of trading difficulties and was no reflection on her ability. She stated that the company would consult with the claimant over the next two weeks in order to avoid redundancy and that there would be further meetings on 3and 6 December to enable the claimant to put forward any suggestions, proposals or alternatives that the company might consider in order to protect her employment with the company. In the event that alternatives to redundancy could not be found the company would rely on selection criteria which she outlined to the claimant. The claimant pointed out that she had already been informed that her position was redundant in October. Ms Donnelly informed the claimant that no final decision had been made as to whether she was being made redundant and that they would consider alternatives but that the claimant that she would be sent an “at risk letter”. The claimant stated that her role was fully occupied and that it was an important time to have a business development manager. She complained that it was difficult for her to perform her role because the Managing Director would not speak to her and that this lack of communication was bound to have a detrimental effect on the business. She also alleged that Mr Donnelly had given some of her duties to Aileen O’Neill such as a CPS advertisement and the Children in Need event because he did not wish to speak to her. When Ms Donnelly asked Mr Donnelly if he would like to respond to what the claimant had just said, he replied “No comment”. The claimant was extremely and visibly upset by his response.

17. Mr Donnelly’s explanation for this comment was that he and Ms Donnelly had decided that in order to avoid upset to the claimant and because he was worried about her baby, that only Ms Donnelly would have dealings with her. It was then suggested that Mr Donnelly would meet the claimant on 29 November to discuss the Christmas campaign. The claimant sent a letter to Ms Donnelly on 28 November 2007 requesting amendments to be made to the minutes which Ms Donnelly confirmed in her evidence to the tribunal were accepted and subsequently incorporated into the minutes. Similar meetings were held on 22 November 2007 between Mr and Ms Donnelly and Mr Rafferty, Mr Toner and Mr Trainor. The claimant and her three male colleagues subsequently received an “at risk” letter giving notice of their potential redundancy.

18. On the 27^th November 2007 the claimant sent a further letter to Mr Donnelly in relation to her grievance and with specific reference to the meeting of 22November 2007. She stated that she found the manner in which she had been treated by the company to be “absolutely appalling” and to suggest that her job is at risk is totally disingenuous given that she was told in no uncertain terms by the managing director that her job was redundant and she was given a leaving date. She asserted that the respondent was seeking to backtrack and cover its own lack of procedure and consultation by saying she was now at risk. She raised Mr Donnelly’s no comment statement. She stated that she considered that the issues raised in her letter of grievance and appeal against dismissal had not been addressed by the respondent and that she waited to hear from them in relation to the next steps in the grievance procedure.

19. Prior to meeting with Mr Donnelly on 29 November, the claimant asked Mrs Milligan to provide her with financial information about the company cars including expenses related to vehicles of Mr Donnelly’s wife and children. Mrs Milligan declined to give this information to the claimant on the basis that it was personal and the claimant did not pursue this further with her. At the meeting on 29, Mr Donnelly asked the claimant why she was questioning Ms Milligan about his daughter’s cars and it was none of her business. The claimant explained that she had requested the information in order to see whether savings could be made, because she had been asked at the meeting on 22 to come up with suggestions in order to avoid her redundancy. Ms O’Neill was present at the meeting and confirmed at the hearing that she agreed with the claimant’s record of the meeting of 29 November 2007 and described the discussion as being “back and forth like a tennis ball”. Both Mrs Milligan and Mrs O’Neill confirmed that the claimant was extremely upset during the course of this meeting. The claimant was taken aback and distressed by Mr Donnelly’s aggressive and hostile attitude.

20. The claimant met again with Ms Donnelly on 3 December as part of the consultation process and she suggested that she could provide part cover for Yvonne McCreesh (who was currently on maternity leave) with an element of her own duties added in or secondly assist with the duties of Mrs O’Neill, who was acting as assistant purchasing officer and part of her own duties added in. The claimant raised the fact that Mr Donnelly had been annoyed because she had made enquiries in relation to costs of vehicles in her enquiries about identifying other cost savings. Ms Donnelly enquired whether the claimant had considered the possibility of reduced working hours. The claimant indicated that she had not but indicated she was prepared to consider this option after her return from maternity leave.

21. Similar meetings were held between Mrs Donnelly and Damien Rafferty, Donal Toner and Michael Trainor. Mr Rafferty suggested that he could move back into the sales team following Ms Deasy’s resignation. Mr Trainor suggested either a five per cent cutback for everybody until an upturn in business and he also indicated that he was prepared to work anywhere within the company. The Tribunal was not provided with a record of the meeting between Ms Donnelly and Mr Toner.

22. The management team met on 5 December 2007 to discuss proposed rationalisation of the ADL Group Limited. The claimant was not asked to attend at this meeting. Proposals made by the claimant and her colleagues were discussed. Mr Donnelly’s view was that the claimant’s suggestions were not practical and that her return to a reduced working week after her maternity leave might be sustainable accompanied by costs savings. A query was raised whether the claimant would have need of her mobile phone and company car during her maternity leave.

23. Ms Donnelly met with the claimant again on 6 December and confirmed that she would continue in post full time until she went on maternity leave in February 2008. The tribunal was satisfied having considered the evidence that the claimant was to return after maternity leave to part time duties to be agreed. Ms Donnelly told the tribunal that nothing was written in stone and that the claimant might work 3 or 3.5 days per week but it was clear that she would not be returning to full time hours. The tribunal accepted that the claimant told Ms Donnelly at this meeting that she would prefer to work full time and Ms Donnelly agreed that if business circumstances improved by the claimant’s return date the company would “look again to making the post full time again”.

24. Ms Donnelly told the claimant at this meeting that she would have to return her mobile phone and company car at the start of her maternity leave. The claimant requested that she should be permitted to keep these for the duration of her maternity leave and sought confirmation that her contractual entitlement to maternity benefits would be honoured throughout her maternity leave. Ms Donnelly advised that she understood that the claimant would be paid as per her contract but that she would seek advice and return to the claimant as soon as possible. Also on the 6 December 2007 Ms Donnelly confirmed to Mr Rafferty that his post of assistant contracts manager would be declared redundant but that he would be offered the full time post of sales consultant which was vacant due to the resignation of Ms Deasey with effect from 10 December 2007 on the same salary of £23000 plus a bonus based on the current bonus scheme. Mr Trainor was told that his post of warehouse operative would be retained but that he was to take on extra responsibilities. On 9 January 2008 Mr Toner was informed by Ms Donnelly that his post of warehouse operative would also be retained with additional responsibilities. Mr O’Neill was given one week’s notice as per his contractual entitlement that his employment was to be terminated on 23 November 2007 by reason of redundancy.

25. The claimant sent an email to Ms Donnelly on 13 December 2007 enquiring whether she knew yet whether she “can legally reduce my contractual maternity benefit?” The same day Ms Donnelly advised the claimant that her contractual maternity benefits would be honoured. Ms Donnelly confirmed that the claimant was in a distressed state and that she “could not get her breath”. Later that day the claimant was signed off on sick leave by her GP. On 17 December 2007 the claimant emailed Kate Donnelly to state that she did not feel well enough to work up until 15 February 2008, the date scheduled for the commencement of her maternity leave. She gave notice of her intention to commence her maternity leave on 14 January. The claimant lodged an originating claim with the Office of Industrial Tribunal and the Fair Employment Tribunal on 2 January 2008 It was agreed with Ms Donnelly that the claimant would take holidays after the expiry of her sickness certificate from 17 January 2008 until 29 January 2008, after which she would commence on her maternity leave. Ms Donnelly wrote to the claimant on 14 January 2008 confirming her maternity leave arrangements and that the claimant would receive her contractual maternity leave entitlement and that she was due to return to work on 21 October 2008. She advised that the claimant would be permitted to retain her mobile phone and company car during her maternity leave. The claimant subsequently resigned her position with the respondent with effect from the 1^st September 2008 as she had obtained employment with another company.

26. The claimant contended that the respondent discriminated against her on grounds of her sex following the announcement of her pregnancy; that she was treated less favourably than other staff members after she announced that she was pregnant ;she was verbally attacked by Mr Donnelly and omitted from meetings that she would have been involved in and that this culminated in her being informed without following proper redundancy procedures that her position was redundant; further that she was victimised after raising a formal grievance which resulted in the respondent backtracking saying that her position was at risk. She contended that the respondents failed properly to investigate or deal with her grievance in any respect and that she was subjected to ill treatment by Mr Donnelly and further that throughout this period Mr Donnelly had communicated regularly with her male colleagues who were given notice of redundancy, none of whom were asked to consider part time work. The respondent did not consider offering her a full time position.

28. For the respondent it was contended that the claimant was not subjected to less favourable treatment on grounds of her pregnancy and that she had in fact been treated in exactly the same way as her male colleagues. It was denied that Mr Donnelly told the claimant on the 12 October that he could give her six weeks notice or accept her resignation and stated that a proper consultation process commenced on 22 November 2007. The respondent denied that the claimant was subjected to less favourable treatment on grounds of her pregnancy or that she was victimised for lodging a grievance. Mr Sheridan conceded on behalf of the respondents that the claimant’s grievance was not investigated by the respondent but contended that this was because the matters raised in her letter of grievance had been dealt with at the meetings of 17 October 2007 and subsequently on 22 November 2007. The respondent’s case was that the claimant did not suffer a detriment in that she was not made redundant, she did not in fact ever work part time, she was paid her full maternity leave entitlement as per her contract and was permitted to keep her mobile phone and company car until her resignation. The claimant was not now entitled to compensation for these items as the loss did not flow from the alleged acts of discrimination but her resignation. Mr Sheridan submitted that the correct measure of compensation should the tribunal find in favour of the claimant, was at the lower end of the middle band of Vento.

30. In relation to the unpaid bonus claim, Mr Donnelly denied that he had told the claimant that she would receive the same bonus as Mrs Milligan and Mrs McCreesh and that she was properly paid her contractual entitlement for the financial year 2006/2007 and since that date no one had received a bonus because of the lack of profit. Mr Sheridan conceded that if the tribunal found as a fact that Mr Donnelly said this to the claimant then the award should be limited to £1000.00 as the claimant was already paid £2000.00.

31. At the time of the acts complained of by the claimant, Article 5(A) of the (Sex Discrimination (Northern Ireland) Order 1976 [“the 1976 Order”] provided that:-

(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.”

32. Since 6 April 2008 Article 5(a) has been amended to omit the words “than he would treat her had she not become pregnant”.

[Article 2 sub paragraphs (1) and (2) of the Sex Discrimination Order 1976 (Amendments) Regulations (Northern Ireland) 2008. ]

33. Article 6 (1) of the 1976 Order prohibits discrimination by way of victimisation and provides “(“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this order if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has-

d. alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Order or give rise to a claim under the Equal Pay Act [or under Articles 62 to 65 of the Pensions (Northern Ireland) Order 1995],

or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them.”

34. Part III of the 1976 Order prohibits discrimination by employers in the employment field.

Article 8(2) provides that it is “unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her-

35. 63A. (1) This Article applies to any complaint presented under Article 63 to an industrial tribunal.

(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 Part III, or

(b) is by virtue of Article 42 or 43 to be treated as having committed such an act of discrimination against the complainant,

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."

36. Article 3 of the Industrial Tribunals (Extension of Jurisdiction) Northern Ireland Order 1994 provides that the tribunal has jurisdiction to hear a claim for breach of contract for sums which arise or are outstanding on the termination of an employee’s employment.

Article 19(2) provides that an employee shall not present a complaint to an industrial tribunal under jurisdiction to which this article applies if-

Webb -v- Emo Air Cargo (UK) Limited 1993, IRLR 27, Wong-v- Igen Limited and others 2005 3All ER812; Equal Opportunities Commission -v- Secretary of State for Trade and Industry 2007 IRLR 377; Madarassy -v- Nomura International Plc 2007IRLR 264; Laing -v- Manchester City Council 2006IRLR748; Shamoon -v- Chief Constable of the Royal Ulster Constabulary 2003 ICR 337; Vento v Chief Constable of West Yorkshire Police (No 2) 2003 IRLR 102 .

39. At the outset of its deliberations the tribunal concluded that the claimant’s employer was the first named respondent and as such was vicariously liable for the actions of its Managing Director, Mr Donnelly and its employees, including Ms Kate Donnelly. The tribunal therefore dismissed Mr Donnelly as a party to the proceedings.

40. The tribunal concluded that the claimant had established the following facts: She was told by Mr Donnelly shortly after he became aware of her second pregnancy effectively that she was to be made redundant with effect from 23 November 2007. Mr Donnelly’s account of his meeting with the claimant on 12 October 2007 was untrue. The respondent’s actions following that meeting were consistent with the claimant being told that her employment would be terminated with effect from 23 November 2007.The tribunal took into account that it would not have been difficult for the respondent to rectify any misunderstanding by the claimant by responding to her explicitly that she had not been given notice of her redundancy. Instead she was provided with details of her redundancy entitlement, provided with a reference and given time off to look for alternative work. Mr Donnelly stopped communicating with the claimant, did not attend and was late for meetings and failed to address the claimant’s appeal against dismissal and grievance letter, the latter in breach of the statutory grievance procedures. However without acknowledging the claimant’s appeal and grievance, the respondent entered into a redundancy consultation process as if previous events had not occurred. Although the tribunal accepts that there was a downturn of business, it took into account that the respondent took on Anne McBride in a part time sales position in October 2007 and part of her job description was to attend trade shows at a time when the claimant’s position was at risk of redundancy. The tribunal concluded that this was supportive of the claimant’s contention that duties were removed from her. Furthermore the claimant was the only employee who was offered part time work as a redundancy avoidance measure. The claimant’s male colleagues who were sent “at risk” letters were permitted to remain in full time work. The tribunal inferred that an assumption was made by the respondent that part time work was suitable for the claimant because she was pregnant with her second child and about to go on maternity leave again.

41. Although the tribunal accepted that the claimant was not in fact made redundant by the respondent and was permitted to remain in her post full time until she went out on sick leave prior to maternity leave, it considered that the respondent’s treatment of the claimant was “of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to (her) detriment'.[ per Lord Hope at para 25 in Shamoon.] The tribunal had particular regard to the case of Equal Opportunities Commission v Secretary of State for Trade and Industry (cited above), which confirms that the decision in the Webb (no.1) case rendered it unlawful to require a male comparator for the purposes of establishing discrimination on grounds of pregnancy. However, Mr Justice Burton approved the submissions of Counsel for the EOC relating to the dicta of Mummery LJ in Madarassy on the use of male comparators in pregnancy discrimination cases, to the effect that a (hypothetical) male comparator may provide evidential assistance in establishing whether the reason for the treatment is pregnancy or some other unrelated reason. The tribunal accepted that there were some similarities in the treatment of the claimant’s male colleagues but there were also material differences in treatment which did, on the facts of this case, amount to less favourable treatment. The tribunal was therefore satisfied, without considering the respondent’s explanation at this stage that it could properly infer from these facts that the reason for the treatment was the claimant’s pregnancy.

42. The tribunal then considered the respondent’s explanation and concluded on a balance of probabilities that the respondent did not show that the treatment was in no way connected with the claimant’s pregnancy and impending maternity leave. The tribunal considered that there was a clear link with Mr Donnelly’s treatment of the claimant in his own mind and her pregnancy. He stated in both his written and oral evidence that the reason that he stopped speaking to the claimant and that he did not address her appeal and grievance letters was because he was concerned that she would become upset and for her unborn child. The tribunal did not find this evidence credible when it was so obvious that this treatment had the opposite effect. The tribunal considered that had these concerns been genuine then he would have dealt with the claimant appropriately, but they were simply an excuse to justify his behaviour after the event. No explanation was given by the respondent as to why the claimant was the only person considered for part time working. The tribunal therefore concluded that the inference drawn by it was correct and that this reflected the real reason for the respondent’s treatment of the claimant. Therefore the tribunal was satisfied that the respondent did treat the claimant less favourably on the ground of her pregnancy.

43. The tribunal took the view that the claimant, due to her lack of legal expertise, had a tendency to use the term “victimisation” in a general sense to describe the treatment to which she was subjected by the respondent when her pregnancy became known. However the tribunal was satisfied that the claimant had established facts from which it could infer that she was less favourably treated because she had raised a complaint of unlawful sex discrimination in her letters of grievance and appeal. Shortly afterwards Mr Donnelly treated the claimant in a hostile and aggressive manner as displayed by his “no comment” statement, when asked for his reaction to the claimant’s allegation that he was not speaking with her. Similarly shortly after the claimant wrote again on 27 November 2007complaining that her grievance had not been addressed, Mr Donnelly behaved in an argumentative and hostile fashion towards the claimant in the meeting of 29 November 2007. The tribunal considered that the explanations given by the respondent were contradictory and lacking in credibility. Mr Donnelly stated that the reason why he had said “No comment was that the claimant had deliberately chosen to misunderstand what he had said on the previous occasions and he wished to avoid further misunderstanding; and further that he had been told previously by Ms Donnelly that he should not speak with the claimant, this was despite the fact that at the meeting on 22 November, it was Ms Donnelly who asked him to respond.

44. The tribunal was satisfied that Mr Donnelly did inform the claimant that he would pay her the same amount of bonus as Yvonne McCreesh and Beth Milligan and that as they had been paid £3000, which figure had not been calculated in accordance with Appendix A of their respective contracts, the claimant was entitled, as conceded by Mr Sheridan, to be paid a further £1000.00. The tribunal did not consider that there was any evidence to support the claimant’s contention that the accounts before it were not genuine and accepted the evidence of Mrs Milligan that neither she nor Mrs McCreesh were paid any further bonuses.

45. The tribunal therefore rejected the claimant’s bonus figure as it considered that there was no basis for its calculation. The tribunal did not consider that it had jurisdiction to consider the claimant’s claim for unpaid wages and loss of the use of the company car and mobile phone. Firstly these matters arose after her originating claim was lodged and in any event, the tribunal considered that the sums claimed for loss of mobile phone and company car flowed from the termination of the claimant’s employment. As these matters were not properly before the tribunal, it declined to take these matters into consideration.

46. The tribunal agreed with Mr Sheridan’s submission that the correct measure of compensation for injury to feeling for sex discrimination and victimisation was towards the lower end of the middle band of Vento. Having considered the medical evidence the tribunal determined that the claimant did not develop a psychiatric illness as a result of the unlawful discriminatory treatment but accepted that she had been caused to suffer stress to a level whereby she was caused to be unwell enough to be signed off as unfit for work for two weeks in October 2007 and again in mid December 2007 so that she had to bring forward the planned start of her maternity leave. However the tribunal noted that there was an improvement in her condition by the date of the report attributed to not being present in her workplace. The tribunal therefore decided that the appropriate award to compensate the claimant for injury to feeling in these circumstances is £7500.00. The tribunal further considered that it was appropriate to award interest pursuant to the Interest on Awards in Sex and Disability Discrimination Cases Regulations (Northern Ireland) 1996. Furthermore the tribunal was obliged to apply 10% uplift to the compensation awarded due to the failure of the respondent to comply with the statutory grievance procedures.

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

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Harney v A Donnelly Ltd [2009] NIIT 105_08IT (27 January 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/105_08IT.html

Industrial Tribunals Northern Ireland Decisions