THE INDUSTRIAL TRIBUNALS

CASE REF: 03583/09

CLAIMANT:			Gail Malcomson

RESPONDENT:		Coffee Merchants Ltd

		DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and compensation of £5723.24, calculated as set out in this decision is awarded.  The claim of sex discrimination is dismissed.  

Constitution of Tribunal:		

Chairman:				Mr N Kelly

Members:				Mrs S Doran
					Mr M Grant

Appearances:

The claimant was represented by Mr Michael Potter, Barrister-at-law, instructed by Norman Shannon & Co.

The respondent did not appear and was not represented.

FINDINGS OF FACT

(1)	The respondent is a small company which prepares roast ground coffee and sells it to retail outlets as a wholesaler.   At all relevant times, the respondent employed                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   Martin Symington, the managing director, Stephen Armstrong, sales manager, Stuart Hewitt, production manager and Abdul Sessay, a production operative.  

(2)	The claimant was employed by the respondent from 16 October 2006 until 9 January 2009.  Her duties were largely clerical in nature.  They included telesales and following up unpaid invoices by telephoning customers.  She worked 20 hours per week and earned £833.33 gross and £725.00 net per month.

(3)	The claimant was never given a written statement of terms and conditions of employment.  

(4)	The respondent had been represented by King and Gowdy Solicitors and had taken an active part in the interlocutory proceedings in this case.  The respondent withdrew its instructions to King and Gowdy on 13 October 2009 and that firm came off record for the respondents.  

(5)	Mr Potter Barrister-at-law stated that the respondent company was in difficulties but that a check in the company’s registry on the day before the hearing had not disclosed the existence of any winding up order, or administration order.  There was no evidence of any company voluntary arrangement.   There therefore appears to be no bar to this matter proceeding before this tribunal.  

(6)	The title of the respondent company has been changed from Coffee Merchants (Northern Ireland) Ltd to Coffee Merchants Ltd and the title of this action has been amended accordingly.   

(7)	Before joining the respondent company, the claimant had worked for O’Kane Food Services Ltd as a manager and had some experience of the production and packaging of roast ground coffee.  
 
(8)	In April 2007, the claimant gave birth to her first child and, at the request of the respondent, had returned early from maternity leave to work, ten weeks after the birth.

(9)	The claimant went on maternity leave for the second time on 17 June 2008.  The claimant had not formerly notified the respondent of the date when she expected to return from maternity leave but had discussed the date of her return informally with Mr Martin Symington in or around Easter 2008.   She told him that she intended taking 35 weeks maternity leave which would have resulted in a return date of 16 March 2009.   The claimant’s second child was born on 28 June 2008. 

(10)	The claimant’s partner, Stephen Kelly, had previously worked for the respondent but had left in March 2008.  In October 2008 Mr Kelly was on a golfing trip in Spain with Mr Symington and others.  Mr Symington asked Mr Kelly “how Gail was doing” and “when is she coming back–we are going to need her in the office come January.” In January 2009 an associated company was due to merge with another company in Mallusk and that merger was likely to generate additional work in the office.   

(11)	Mr Kelly passed the message on to the claimant and the claimant returned to work, earlier than she had intended, on Monday 5 January 2008.  Her job was essentially the same as it had been previously with one significant exception.  The respondent had recently entered into a new arrangement with Bibby Financial Services Ltd to factor its invoices to customers.  As a result, the claimant was no longer required to chase up outstanding invoices by telephoning customers. The claimant stated that this duty had previously occupied 30% of her working time.   The respondent in the written response form had described this as her “primary responsibility”.  If that wording was meant to suggest that this duty occupied the majority of the claimant’s working time, the tribunal does not accept that this is correct.  When describing the claimant’s duties at paragraph 4.4 of the written response form, “collect outstanding accounts” appeared fourth in the list of duties after answering telephone calls, making sales telephone calls, and preparing invoices.   If collecting outstanding invoices was the primary or most important responsibility of the claimant, the tribunal would have expected it to have been listed first in paragraph 4.4.  Furthermore in a letter dated 26 February 2008 from the respondent company to the claimant, in which her ‘tasks’ were specified, the first task listed was “telesales”.  The second task was “collection of accounts”.  The tribunal therefore concludes that the collection of outstanding accounts was not the primary or main task of the claimant and the tribunal accepts the claimant’s evidence that it had occupied 30% of her working time.  

(12)	No clear instructions were given to the claimant on her return to work on Monday 5 January 2009.   She was told by Mr Symingtom to “just get through the week.”  She dealt with the goods and documentation belonging to the company which was due to merge with another company in Mallusk and then spent her time ringing telesales customers.  

(13)	  On Friday the 9 January 2009, Mr Symington told the claimant “Gail, we can’t afford to keep you–we have to let you go.” She left work that day.  There had been no prior warning or consultation.  There was no evidence of any consideration of alternative employment or of any structured redundancy selection procedure.  The requirements of the statutory dismissal procedure were not completed.  

(14)	The claimant received a cheque for £384.62 in respect of statutory redundancy pay.  She also received payment for the period from 1 January 2009 to 9 January 2009 and for untaken holiday pay.  She received no notice of dismissal or any payment in lieu of notice.  

(15)	Abdul Sessay was male, worked full time, and worked mainly in the preparation and packaging of roast ground coffee. The claimant stated that Mr Sessay had received one or more written warnings and that, in contrast, she had a clear disciplinary record.  However there was no written or corroborative evidence of any disciplinary record for Mr Sessay.  

(16)	  The claimant produced detailed evidence in the form of a Jobseeker’s Allowance log of an immediate and sustained search for alternative employment which resulted in a temporary job as a classroom assistant covering for sick absence for the period of 14 January 2009–2 April 2009.  Her net weekly pay during that period was £154.19.   She then resumed her search for employment and was eventually successful in obtaining a post in a retail outlet in Banbridge from 19 October 2009 to the date of the hearing.  Her net weekly pay in this job is £103.85.  The tribunal is satisfied that the claimant made every possible effort to mitigate her loss in this matter.

RELEVANT LAW

(17)	Article 130 A of the Employment Rights (Northern Ireland) Order 1996 provides as follows:

“(1)     	An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if

(a)	one of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) 2003 (dismissal and disciplinary procedures) applies in relation to this dismissal;

(b)	the procedure has not been completed, and 

(c)	the non-completion of the procedures is wholly or mainly attributable to the failure by the employer to comply with its requirements. 
 
(2)	  Subject to paragraph (1) failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130 (4) (A) as by itself making the employer’s actions unreasonable if he shows that he would have decided to dismiss the employee if he had followed that procedure;

(18)	Article 17 of the Employment (Northern Ireland) Order 2003 provides:  
            
 “(1) 	This Article applies to proceedings before an industrial tribunal relating to a claim under any of the jurisdictions listed in Schedule 2 by an employee. 

(3) 	If in the case of proceedings to which this Article applies, it appears to the industrial tribunal that;

(a) 	The claim to which the proceedings relate concerns a matter to which one of the statutory procedures applies,

(b) 	The statutory procedure was not completed before the proceedings were    begun, and,

(c) 	The non-completion of the statutory procedures was holding in any attributable to failure by the employer to comply with the requirements of that procedure, 

It shall subject to paragraph (4), increase any award which it makes to the employee by 10% and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make the total increase more than 50%.

(4) 	The duty under paragraph (3) to make a reduction or increase at 10% does not apply if there are exceptional circumstances which would make a reduction or increase by that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase at a lesser percentage as it considers just and equitable in all the circumstances.  

 (19) 		Where an award falls to be adjusted under Article 17 and under Article 27, the       adjustment under Article 17 shall be made before the adjustment under that Article. 
 
(20) 	An employer is required under Article 33 of the Employment Rights (Northern Ireland) Order 1996 to provide a written statement of specified terms and conditions of employment to an employee.  Under Article 27 of the Employment (Northern Ireland) Order 2003, the tribunal has the power to impose a financial penalty in certain circumstances.  Firstly, the proceedings brought by the claimant must fall within the jurisdictions listed in Schedule 4 to the 2003 Order.  That Schedule includes claims in respect of unfair dismissal.  That requirement is therefore satisfied in the present case.   Article 27 (3) of the 2003 Order provides:

“(3) 		If in the case of proceedings to which this Article applies; 

(a)	The industrial tribunal makes an award to the employee in respect of the claim to which the proceedings relate and 

(b)	When the proceedings were begun, the employer was in breach of his duty to the employee under Article 33 (1) or 36 (1) of the Employment Rights Order,

The tribunal shall, subject to paragraph(5), increase the award by the minimum amount and may if it considers just and equitable in all the circumstances increase the award by the higher amount instead.  

(21)	The minimum amount referred to in the 2003 Order is an amount equal to two weeks’ pay and a higher amount is an amount equal to four weeks’ pay.  The amount of a week’s pay is to be calculated in accordance with Chapter IV Part 1 of the Employment Rights Order and is subject to the cap imposed in Article 23 of that Order.  

(22)	The statutory changes introduced to give effect to EC Council directive D 97/80 and Council Directive 2000/78/EC, were analysed by the Court of Appeal in the case of Igen v Wong (2005) EWCA142 and guidance for tribunals was set out in a series of 13 numbered paragraphs in that decision.  The Northern Ireland Court of Appeal in Mc Donagh and others v Royal Hotel [2007] NICA 3, confirmed the guidance can be applied to all forms of discrimination and stated, “for the purposes of the present case, the first question that the judge should have articulated was “have the plaintiffs proved that the on the balance of probabilities facts from which I could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against them?”

	These guidelines were revisited and affirmed by the Court of Appeal in the case of Madarassy v Nomura International PLC [2007] EWCA CIV 33 on 26 January 2007, at paragraph 12 of that decision, the Court stated; 

“I do not underestimate the significance of the burden of proof in discrimination cases.  There is probably no other area of civil law in which the burden of proof plays a larger part than in discrimination cases.  Arguments on the burden of proof surface in almost every case.  The factual content of the cases does not simply involve testing the credibility of witnesses and contested issues of fact.  Most cases turn on the accumulation of multiple findings primary fact from which the court or tribunal is invited to draw an inference of a discriminatory explanation of those facts.  It is vital that, as far as possible, the law on the burden of proof applied by the fact finding body is clear and certain. The guidance in Igen v Wong meets this criteria.  It does not need to be amended to make it work better. “

(23)	In paragraph 52, the court stated;

“Much of what Mr Allen said about the effect of reversing the burden of proof is correct.  Mr Allen is obviously right in saying that the sub section does not require Ms Madarassy to prove “a conclusive case” of unlawful discrimination.”
			“She only has to prove facts from which the tribunal “could” conclude that there had been unlawful discrimination by Nomura, in other words, she has to set up a “prima facie” case.” 

(24)	At paragraph 54, the court stated;

“I am unable to agree with Mr Allen’s contention that the burden of proof shifts to Nomura simply on Miss Madarrasy establishing the facts of a difference in status and a difference in the treatment of her.” 

(25)	At paragraph 56, the court stated;

“The court in Igen v Wong expressly rejected the argument that it was sufficient for the claimant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination.  The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.  They are not, without more, sufficient material from which the tribunal “could conclude” that, on the balance of probabilities the respondent had committed an unlawful act of discrimination.”

(26)	At paragraph 57, the court continued;

“Could conclude” in section 63A(2) must mean that “a reasonable tribunal could properly conclude” from all the evidence before it.  This would include evidence adduced by the claimant in support of the allegations of sex discrimination such as evidence of the difference in status, a difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent contesting the complaint. “

(27)	At paragraph 58, the court continued;

“The absence of inadequate explanation of the differential treatment of the claimant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent.  The absence of inadequate explanation only becomes relevant if a prima facie case is proved by the claimant.  The consideration of the tribunal then moves to the second stage.  The burden is on the respondent to prove that he has not committed an act of unlawful discrimination. He may prove this by an adequate non-discriminatory explanation of the treatment of the claimant.  If he does not, the tribunal must uphold the discrimination claim. “

DECISION

(28)	The claimant was entitled to a statutory minimum period of notice under Articles 118 of the Employment Rights (Northern Ireland) Order 1996.  In this case, the minimum period of statutory notice was two weeks.  No such notice was given and therefore the claimant was entitled to pay in lieu of notice for those two weeks. The relevant period is covered by the unfair dismissal compensation.

(29)	The claimant was never given a written statement of terms and conditions as required by Article 33 of the 1996 Order.  Since the tribunal has upheld the unfair dismissal claim, the tribunal has the power to impose a financial penalty under Article 27 of the 2003 Order, and imposes the minimum increase of two weeks’ pay.   There are no exceptional circumstances which would, for the purposes of paragraph (5), make that increase unjust or unfair.  The amount of that increase is therefore £334.60.

(30)	The respondent totally failed to observe the requirements of the statutory dismissal procedure provided for under the 2003 Order and the dismissal was therefore automatically unfair.   The tribunal concludes that a statutory uplift of 20% would be appropriate.  The tribunal has also considered, for the purposes of a Polkey deduction, whether, had the correct procedure been applied, the claimant would have been made redundant.  In the absence of any evidence from the respondent about any attempt to find alternative employment or any evidence about the exact process by which the respondent came to the decision to select the claimant for redundancy, the tribunal clearly cannot conclude that the claimant would inevitably have been selected for redundancy had the correct procedure been applied.  That said, the tribunal, on the evidence of the claimant, has to conclude that the only other realistic candidate for selection for redundancy was Mr Sessay.  It would have been highly improbable that the production manager or the sales manager would have been selected for redundancy in these circumstances.  Mr Sessay’s post was directly involved in production.  While the claimant’s evidence was that she had some experience in these areas while working as a manager for a previous employer, the tribunal concludes that experience would have been slight at best and could not reasonably have been regarded as equivalent to that of Mr Sessay.  Reaching a conclusion, as best it can, on the evidence available, the tribunal concludes that there was therefore a 40% chance that the claimant would have been selected for redundancy if the correct procedure had been applied.   The tribunal therefore applies a 40% Polkey deduction.   

(31)	The calculation of unfair dismissal compensation is as follows;

Basic Award

4 weeks’ pay X 1 X £192.31 = £769.24

Less redundancy pay received = £384.62

Total Basic Award = £384.62

Compensatory Award

Actual loss of earnings 12 and 13 January 2009 = £66.92

Actual loss of earnings 14 January 2009 to 2 April 2009, 11 weeks and 1 day X £13.11 per week = £146.83

Actual loss 3 April 2009 to 16 October 2009 

28 weeks at £167.30 = £4684.40

Actual loss 19 October 2009 to 11 November 2009

2 weeks 2 days at £63.45 = £152.28

Future Loss

26 weeks X £63.45 = £1649.75

Loss of statutory rights = £250.00

Preliminary Total Compensatory Award = £6950.18

Polkey deduction 40% = £4170.10

Statutory Uplift = £5004.12

Article 27 Increase = £5338.72

Final Total Compensatory Award = £5338.72

Total Basic and Compensatory Award = £5723.24

(32)	The claimant alleged that her selection for redundancy was, in part, motivated by sex discrimination and by her status as a part-time worker and as a mother.   She sought to argue that the comparator for the purpose of determining whether discrimination had taken place was Mr Sessay and that the fact that he was male demonstrated that discrimination had taken place.   As the Court of Appeal indicated in Madarassy, it is not sufficient, to shift the burden of proof, for a claimant simply to establish a difference in treatment and a difference in gender.  There must be something more.  The claimant sought to rely also on what she alleged were remarks made by Mr Symington which, she alleged, demonstrated a discriminatory attitude towards female workers and maternity.  In the event, the claimant could only recall one remark.  Her evidence was that when there had been a discussion about a fax.  Mr Symington had made a remark to the claimant along the lines of “Don’t worry about it. It must be your hormones”.  This was at a stage where the claimant was pregnant but had not informed Mr Symington.  The claimant then checked with her partner and found out that her partner had informed Mr Symington that she was pregnant and the remark was therefore clearly in that context.  The remark was clearly clumsy and inappropriate.  However in the absence of anything else, the tribunal does not believe that there is sufficient evidence on which it could, reasonably, conclude that it was entitled to draw an adverse inference, in the absence of any explanation from the respondent, of unlawful discrimination.  The tribunal therefore dismisses the claim for sex discrimination.

 INTEREST 

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

Chairman:					 

Date and place of hearing:		11 November 2009, Belfast.

Date decision recorded in register and issued to parties: