McEvoy v Anne-Marie O'Hare, t/a Sugar I... Anne-Marie O'Hare, t/a Sugar I... [2014] NIIT 298

THE INDUSTRIAL TRIBUNALS

CASE REFS: 298/14

317/14

CLAIMANT: Rita McEvoy

RESPONDENT: Anne-Marie O’Hare, t/a Sugar Island Beads

DECISION

The unanimous decision of the tribunal is that the claimant was not dismissed. The claimant is therefore not entitled to a remedy in relation to the respondent’s failure to provide a statement of employment particulars or an amount for notice pay.

Constitution of Tribunal:

Employment Judge: Employment Judge Crothers

Members: Mrs M Torrans

Mr I Rosbotham

Appearances:

The claimant was represented by Mr G O’Neill.

The respondent was represented by Mr T Sheridan of Peninsula Business

Services Ltd.

THE CLAIM

1. The claimant made a claim of unfair dismissal, (and in the alternative for a redundancy payment), and claims in respect of the respondent’s failure to provide a statement of initial employment particulars and for notice pay. Mr O’Neill, on behalf of the claimant withdrew the claim for a redundancy payment during the tribunal hearing. Mr O’Neill also withdrew contentions, contained in his written submissions, relating to a constructive dismissal claim.

ISSUES BEFORE THE TRIBUNAL

2. The remaining issues before the tribunal were as follows:-

(1) Was the claimant dismissed, and if so, was she unfairly dismissed and entitled to a notice payment?

(2) Was the claimant entitled to an award in respect of the respondent’s failure to provide an initial statement of employment particulars?

SOURCES OF EVIDENCE

3. The tribunal heard evidence from the claimant and Mary McDowell on her behalf. It also heard evidence from the respondent, Anne-Marie O’Hare, and from Marie Maxwell, on behalf of the respondent. The tribunal was also presented with an agreed bundle of documents together with further documentation in the course of the hearing, including documentation relating to the claimant’s application for Jobseeker’s Allowance.

FINDINGS OF FACT

4. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact on the balance of probabilities:-

(i) The claimant was employed as a part-time shop assistant (16 hours per week) in the respondent’s business in Newcastle. She commenced employment in May 2010. She claimed that she had been unfairly dismissed by the respondent on 20 January 2014. She regularly worked from 2.00 pm until 5.00 pm five days per week, but, on occasions was requested to open up the premises and work some mornings.

(ii) It was clear from the evidence that the respondent had worked hard in establishing her business in Newcastle and, given her family responsibilities which involved rearing five children under the age of 13, she valued the claimant both as a close friend and an essential employee. It was also evident that the business was going well. December 2013 was a profitable month. The income however dipped in January and gradually picked up again. However, this is explained to some extent by seasonal factors. The tribunal was satisfied, however, that work was not at all slack in the weeks preceding 20 January 2014. Furthermore, after the claimant no longer worked for the respondent, Anne-Marie O’Hare was placed in great difficulty and had to close the business in the afternoons although from in or about mid-February she did obtain help from a friend for some time. Another individual joined the business in June 2014 to be trained in the job. There was therefore no diminution in the requirements of the post occupied by the claimant.

(iii) It was common case that the claimant and respondent had a close personal and working relationship up until 20 January 2014. The claimant was made aware over the preceding weekend that the respondent had a hairdressing appointment on Monday morning, 20 January 2014. However, it became evident on Sunday evening 19 January 2014, that the appointment was being cancelled. Anne-Marie O’Hare phoned the claimant at 8.59 am on 20 January 2014. They discussed personal and family matters during a conversation which lasted five minutes and 30 seconds. At the end of this conversation, the claimant alleged that the respondent told her that she would not need her until the better weather. The respondent absolutely denied this and maintained that the purpose of the call was to inform the claimant that she (the respondent) was going to open up the shop, that she would ring the claimant when she got into the shop, and, in any event would see her later. The respondent also claimed that the claimant said “that’s fine”.

(iv) The claimant and the respondent were both recalled at a late stage in the hearing to address the matters raised in the telephone call at 8.59 am on 20 January 2014. In the course of her cross-examination the claimant added to her initial account of the telephone conversation by stating that the respondent had indicated “by the way” that she did not need her any more until the better weather “because she was going to do it herself”. This was the first occasion on which the claimant referred to the respondent volunteering to do the afternoon work herself. The tribunal is not convinced by the claimant’s evidence in relation to this telephone call, even though, having contacted the Social Security Agency later that morning, she subsequently met with the Agency at 9.30 am on 22 January 2014 and inserted in the claim form opposite the question “why did you stop work?” that she was “told she didn’t need me until the better weather”. The Social Security documentation does not contain any indication of the claimant’s claim that she was dismissed by the respondent or, indeed, that she had voluntarily left her employment. It is also clearly stated on the form that, as far as the claimant was concerned, no monies were due to her from the respondent. This is in response to a question which reads as follows:-

“Have you received or do you expect to receive any payment like this because a job ended?”

The Social Security Agency therefore dealt with the claimant’s claim as a “straightforward” case and recorded the effective date for Jobseeker’s Allowance purposes as 20 January 2014. There is no evidence that they reverted to the respondent with any queries.

(v) The claimant and respondent provided conflicting evidence not only in relation to the first call at 8.59 am but two subsequent calls made by the respondent at 11.15 am (which lasted for two minutes and three seconds), and again at 11.23 am (which lasted for one minute and fourteen seconds). The claimant claimed in her evidence that, after the initial call at 8.59 am, she had undertaken a five minute walk to catch a bus to Newcastle at 9.15 am in order to meet her daughter whom she was accompanying to a physiotherapy appointment at Downe Hospital, Downpatrick. The tribunal was furnished with documentation in relation to this appointment, but received no evidence as to when it took place. The claimant intended to go shopping with her daughter after the appointment.

(vi) In the course of the telephone conversation at 11.15 am the respondent enquired of the claimant as to when she would be at work that day. The claimant told her that she was in Downpatrick with her daughter and that she could not make it to the shop to work in the afternoon even if she wanted to.

(vii) In addition to the tribunal preferring the respondent’s account of the 8.59 am call, it was also satisfied that, during that call, the respondent did not tell the claimant to ring the Social Security Agency and make a claim. In the course of the 11.15 am telephone conversation, the tribunal was satisfied that the respondent did enquire of the claimant as to whether she was sure she was in Downpatrick as the background was very quiet and seemed to the respondent to indicate a home environment. The tribunal was satisfied that, in the claimant’s mind, this indicated that the respondent was questioning her truthfulness although she did not specifically refer to her as a “liar”. The telephone call ended abruptly and the respondent telephoned the claimant again at 11.23 am and made it clear to her again that she needed her to work in the afternoon. A discussion also ensued relating to a large cup of used teabags left in a cup by the claimant in the respondent’s premises. The tribunal, is satisfied however that the claimant was not accused by the respondent of being dirty. It is also satisfied that the nature of the exchange was such that in the course of these mid-morning telephone conversations the claimant did state to the respondent that she could “stuff her job”. The claimant rang back stating that she could work the next day. When reminded that she was needed on the afternoon of 20 January 2014, however, she set the phone down and did not appear in work subsequently.

(viii) Having considered the totality of the relevant evidence pertaining to 20 January 2014, the tribunal is not satisfied that the claimant’s contract was terminated by the respondent with or without notice. Where conflicts of evidence arise, the tribunal prefers the respondent’s evidence. The claimant subsequently arrived at the respondent’s premises on 26 January 2014 and, in a rather unpleasant atmosphere, demanded her P45 which the respondent did not send out to her for some time as she hoped that the claimant would return to work. Despite contacting the respondent on or about 10 February 2014, the claimant did not present a grievance in writing to her at any stage prior to presenting her claim to the tribunal on 15 February 2014.

(ix) The respondent conceded that it had not furnished the claimant with an initial statement of particulars of employment.

THE LAW

5. (1) The law on unfair dismissal is set out in Articles 126-130, and 130A of the Employment Rights (Northern Ireland) Order 1996. Article 127 provides that an employee is dismissed by his employer if ...

“(a) The contract under which he is employed is terminated by the employer (whether with or without notice).”

(2) The effect of Article 27 of the Employment Rights (Northern Ireland) Order 2013, in the context of this case, is that unless the claimant is successful in the unfair dismissal claim, no award can be considered in relation to the respondent’s failure to provide an initial statement of employment particulars.

SUBMISSIONS

6. The tribunal carefully considered the written and oral submissions of the claimant’s representative together with the oral submissions made by the respondent’s representative.

CONCLUSIONS

7. The tribunal having carefully considered the evidence together with the submissions from the representatives, and having applied the principles of law to the facts as found, concludes, (as in paragraph 4(viii) of the findings of fact) that the respondent did not terminate the claimant’s employment with or without notice on 20 January 2014. The claimant was therefore not dismissed by the respondent and her claim of unfair dismissal is dismissed. It follows that she is not entitled to an award for the respondent’s failure to provide an initial statement of employment particulars, and her claim for notice pay must also be dismissed.

Employment Judge:

Date and place of hearing: 31 July 2014, Belfast.

Date decision recorded in register and issued to parties:

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Industrial Tribunals Northern Ireland Decisions