THE INDUSTRIAL TRIBUNALS

CASE REF:    1797/10

CLAIMANT:	Laura Maguire

RESPONDENT:	Mark Matthews, T/A Mooney Matthews 

DECISION

The unanimous decision of the tribunal is that the claimant’s claims for unfair dismissal and sex discrimination are dismissed.  

Constitution of Tribunal:

Chairman:	Mr B Greene

Members:	Mrs M J McReynolds
	Mr A Burnside

Appearances:

The claimant was represented by Mr John Lowry from the Workers Party Advice Centre.

The respondent was represented by Ms Maxine Orr, Solicitor, of Worthingtons Solicitors.

SOURCES OF EVIDENCE

1.	The tribunal heard evidence from the claimant and the respondent.  The tribunal also had regard to two bundles of documents amounting to 121 pages.

THE CLAIM AND THE DEFENCE

2.	The claimant claimed unfair dismissal and sex discrimination.  The respondent denied the claimant’s claims in their entirety.

THE ISSUES

3.	Legal Issues

	(1)	Was the claimant fairly dismissed under Article 130 of The Employment Rights (Northern Ireland) Order 1996?

	(2)	Was the claimant unlawfully discriminated against on the grounds of her sex contrary to the Sex Discrimination (Northern Ireland) Order 1976?

	(3)	Was the claimant unfairly selected for redundancy on the grounds of her pregnancy contrary to Article 131 of The Employment Rights (Northern Ireland) Order 1996?

	Factual Issues

	(1)	Was the claimant dismissed by reason of her pregnancy as alleged or for the reasons set out by the respondent, that is, redundancy?

	(2)	Did a redundancy situation exist in the respondent’s workplace?

	(3)	Was the claimant’s position with the respondent redundant?

	(4)	Did the respondent terminate the claimant’s contract of employment fairly in all the circumstances?

FINDINGS OF FACT

4.	(1)	The claimant was born on 25 October 1987.  She was employed by the respondent from 11 February 2008 until 2 July 2010 when she was dismissed by reason of redundancy.

	(2)	The respondent is a firm of accountants employing two chartered accountants, two trainee accountants, one tax technician and the claimant.

	(3)	The claimant was employed as an administrator and did administration work including pay roll, VAT returns, bank reconciliations and she used SAGE.

	(4)	The claimant worked 38.75 hours per week and earned per hour £6.00 gross and £5.10 net.

	(5)	On 4 May 2010 the claimant’s doctor confirmed her pregnancy.  The baby was born on 2 January 2011.

	(6)	On 5 May 2010 the claimant informed the respondent of her pregnancy.  The respondent expressed his pleasure at her news.  In the course of the conversation the respondent used words to the effect that the claimant needed to grow up if she were starting a family of her own.  He also stated that she would be entitled to statutory maternity pay and that if he did not need her she would not be in his employment.

	(7)	The claimant felt after the meeting that her job was secure but she stated that the respondent had made her feel guilty because she was pregnant.

	(8)	Towards the end of May 2010 the respondent reviewed staff activities for the year 2009 - 2010 (ending 30 April 2010).  This was motivated by the impact of the recession on the practice, the fall in turnover, cash flow difficulties and the ability of the practice to survive.  He made changes to telephone costs saving £1,260.00 and automated as many tasks as he could.  However, the latter did not lead to significant savings.

	(9)	The claimant was the only administrative person in the business.  The amount of chargeable work that she did had dropped from 38,420 units in 2009 to 19,770 units in 2010.

	(10)	In the year 2009 to 2010 the claimant had done 1,658 chargeable hours of work of which 1,110 was recurring work and 617 related to the respondent’s personal work.  The respondent projected for the future that the claimant would only have 494 chargeable hours which worked out at 10 hours per week.  The claimant’s chargeable hours only attracted £20.00 per hour whereas that of the other employees of the business attracted an hourly rate in excess of £20.00.

	(11)	The cost of the claimant annually to the business was £11,200.00 including national insurance contributions.

	(12)	When the respondent had finished his review of the activities of all members of staff by 27 or 28 February he concluded that the removal of the administrative position and the redistribution of the duties among the remaining staff could make significant savings to the business.

	(13)	On foot of that the respondent embarked on a process of consultation with the claimant about the risk of redundancy and to consider alternatives to redundancy.  Meetings took place on 9, 14 and 18 June 2010.

	(14)	The claimant does not make any procedural challenge to the redundancy meetings.

	(15)	In the course of the consultation the claimant suggested reducing her hours but the respondent felt that this was impracticable as the administrative person needed to be available on a full-time basis.

	(16)	A trainee accountant at this time was seconded to an accountancy business in Armagh in which the respondent had a financial interest.  This was done also to save costs.  The respondent had hoped that this would last for three to six months but only lasted four weeks as the Armagh business decided to recruit its own trainee accountant.

	(17)	The tribunal is not persuaded, on the basis of the evidence before it, that the relocation of the trainee accountant was anything other than an attempt to make savings for the business.

	(18)	The claimant was notified on 18 June 2010 that she had been selected for redundancy and would leave on 2 July 2010 having worked two week’s notice.

	(19)	The claimant received her due redundancy pay and notice pay.

	(20)	The claimant was in receipt of Jobseekers Allowance during July and August 2010.  During that time she did not make any efforts to obtain alternative employment.

	(21)	In September 2010 the claimant moved from Jobseekers Allowance to Income Support because she was no longer available for work due to her pregnancy.

	(22)	The respondent accepts that it did not provide to the claimant a written statement of her main terms and conditions of employment.

	(23)	The claimant believes that redundancy was not the reason for her dismissal but rather it was because she had become pregnant.

THE LAW

5.	(1)	To establish that a dismissal is not unfair an employer must establish the reason for the dismissal and that it is one of the statutory reasons that can render a dismissal not unfair (Article 130(1) and (2) The Employment Rights (Northern Ireland) Order 1996).

	(2)	If an employer satisfies both of the above requirements then whether the dismissal was fair or not depends on whether in the circumstances the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee (Article 130(4) The Employment Rights (Northern Ireland) Order 1996).

	(3)	An employee who is dismissed shall be regarded as unfairly dismissed if the reason for the dismissal relates to the employee’s pregnancy, childbirth or maternity (Article 131 The Employment Rights (Northern Ireland) Order 1996).

	(4)	An employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to the fact that the requirements of that business for employees to carry out work of a particular kind or for employees to carry out work of a particular kind in the place where the employee was employed by the employer have ceased or diminished or are expected to cease or diminish (Article 174(1)(b) The Employment Rights (Northern Ireland) Order 1996).

	(5)	In the case of Kingwell  v  Elizabeth Bradley Designs Ltd (2003) EAT/661/02, [2003] All ER (D) 74(EAT) Mr Justice Burton stated;-

			“It appears to us that there is a fundamental misunderstanding about the question of redundancy.  Redundancy does not only arise when there is a poor financial situation at the employers, although as it happens, there was such in this case.  It does not only arise where there is a diminution of work in the hands of an employer, although, as it happens, again, there was in this case.  It can occur where there is a successful employer with plenty of work, but who, perfectly sensibly as far as commerce and economics is concerned, decides to reorganise his business because he concludes that he is overstaffed.  Thus, even with the same amount of work and the same amount of income, the decision is taken that lesser number of employees are required to perform the same functions.  That too is a redundancy situation.”

	(6)	A person discriminates against a woman if after she becomes pregnant and on the grounds of her pregnancy the person treats her less favourably (Article 5(1) Sex Discrimination (Northern Ireland) Order 1976).

	(7)	It is for the claimant who complains of sex discrimination to prove, on the balance of probabilities, facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part III or which by virtue of Article 43 or 43 of the Sex Discrimination (Northern Ireland) Order 1976 is to be treated as having committed such an act of discrimination against the claimant (Article 65A Sex Discrimination (Northern Ireland) Order 1976).

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

6.	(1)	Following the approach of the EAT in Kingwell  v  Elizabeth Bradley Designs Ltd it is clear that a redundancy situation existed in the respondent company in that either the respondent anticipated there would be a diminution in work or the employer had sufficient work but decided to reorganise his business in order to make efficiencies.

	(2)	The tribunal is not persuaded that the claimant’s pregnancy was a factor in the decision to dismiss the claimant.  In so concluding the tribunal had regard to the following matters;-

		(a)	The principal argument advanced on behalf of the claimant in support of her contention that her dismissal arose by reason of her pregnancy and not a redundancy was the coincidence in time of her pregnancy and her redundancy.

		(b)	The claimant informed the respondent of her pregnancy on 5 May 2010.

		(c) 	The respondent began the redundancy process at the beginning of June 2010.

		(d)	The employer concluded his review of the work carried out by all members of staff at the end of May 2010.

		(e)	There is a gap of some three to four weeks between the notification to the respondent of the pregnancy and his conclusion that redundancy was required of the claimant’s post.

		(f)	Apart from the time argument advanced on behalf of the claimant there is not any other evidence to suggest to the tribunal that the respondent’s decision to make the claimant redundant or to dismiss her arose from her pregnancy.

		(g)	The statement by the respondent to the claimant that she needed to grow up, whilst being a hurtful statement, does not seem to the tribunal to suggest some discriminatory desire or intention or action by the respondent by reason of the claimant’s pregnancy.

		(h)	If coincidence in time is the factor which should persuade the tribunal to make a finding, then the conclusion of the review of the activities of all the staff at the end of May 2010 is closer to the time when the respondent initiated the redundancy process and in the tribunal’s view is a more likely explanation for the actions that the respondent took.

	(3)	As stated above in the findings of fact the tribunal is persuaded that the trainee accountant was seconded to the Armagh business in an effort to save money which effort did not achieve its goal fully by reason of the decision of the Armagh business to recruit its own trainee accountant.  The tribunal is not persuaded that this move was an action taken by the respondent to disguise or hide his discriminatory actions towards the claimant.

	(4)	The dismissal of the claimant is capable of being a detriment for the purposes of the sex discrimination claim.  However as the tribunal has found that there is no evidence before it to persuade it that the ground of that action by the respondent was the claimant’s pregnancy then the claimant has not established a prima facie case of discrimination.  Accordingly the burden does not shift to the respondent and the claimant’s claim must fail.

	(5)	The respondent has advanced a reason for the claimant’s dismissal (redundancy) which is a potentially fair reason.

	(6)	The respondent entered into and concluded with the claimant a consultation process in relation to the redundancy including a consideration of ways to avoid the redundancy situation.  The claimant makes no criticism of that from a procedural point of view.

	(7)	Accordingly the tribunal is satisfied that in all the circumstances the respondent acted fairly and reasonably in dismissing the claimant by reason of his reorganisation and/or efficiencies in his business.

	(8)	Accordingly the claimant’s claim for unfair dismissal is also dismissed.

	(9)	The respondent accepts that it did not provide the claimant with a written statement of her main terms and conditions of employment.  As the tribunal has not made a finding of sex discrimination or unfair dismissal in favour of the claimant she is not entitled to any award by reason of this failure on the part of the respondent to provide her with a written statement of her main terms and conditions.

Chairman:

Date and place of hearing:	24 and 25 March 2011, Belfast.

Date decision recorded in register and issued to parties: