Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS      

 

CASE REF:    1600/11      

2984/11      

 

 

CLAIMANT:               Siobhan Donnelly

 

RESPONDENTS:      1.       Paul Stafford Hairdressing

                                 2.       Paul Stafford

                                 3.       Leisa Stafford

                                 4.       John McKernan

 

 

 

DECISION

 

The decision of the tribunal is that the claimant is awarded compensation against the first three respondents in the sum of £2340.74 for unlawful discrimination.  The claims of harassment and unfair dismissal are dismissed.

 

 

Constitution of Tribunal:

 

Chairman:                Mrs Ó Murray

 

Members:                 Ms D Adams

                                 Mr D Walls

 

 

Appearances:

 

The claimant was represented by Ms R Best, Barrister-at-Law, instructed by Worthingtons Solicitors.

 

Respondents 1 to 3 were represented by Mr A Ferguson of Personnel and Training Services.

 

The fourth respondent appeared in person.

 

THE CLAIM

 

1.       The claimant’s claim was, firstly, for direct discrimination on grounds of sex and/or pregnancy and, secondly, for harassment on grounds of sex.  The claimant also claimed one day’s pay in respect of ante-natal appointments.

 

THE ISSUES

 

2.       The issues for the tribunal were as follows:-

 

          (1)    Whether the claimant was discriminated on grounds of sex, pregnancy or maternity leave between September 2010 and her resignation on 24 October 2011;

 

          (2)    whether the claimant was harassed on grounds of sex, pregnancy or maternity leave as a result of comments and texts from Mr McKernan;

 

          (3)    whether the claimant resigned or was constructively dismissed following a “last straw” breach of contract;

 

          (4)    if the claimant was dismissed did that amount to discrimination and/or unfair dismissal.

 

SOURCES OF EVIDENCE

 

3.       The tribunal had before it the witness statements from the claimant and her witnesses namely Catherine Treanor, John Lewis, Órla Nic Giolla Chomhain and Lee Stinton.  For the respondent the tribunal had the written statements of Paul Stafford, Leisa Stafford, Anne McColgan, Gillian Masson, Jana McCausland and John McKernan.  The tribunal also had regard to the oral evidence and the documents to which it was referred in the course of the hearing.

 

THE LAW

 

4.       The claimant provided a skeleton argument and copy authorities.  Both sides provided oral submissions.  Set out below are the key relevant principles derived from the authorities and the legislation.

 

5.               For the claimant Miss Best referred us to the specific provisions of the Sex Discrimination (Northern Ireland) Order 1976 as amended (“the Order”) relating to direct discrimination and harassment at Articles 3, 5A and 6A.  We were also referred to Articles 42 and 43 relating to the liability of employers and principals and the liability of an employee or agent.

 

6.       At the invitation of the chairman Miss Best also made submissions in relation to Article 8(2A) relating to liability of employers for failing to protect employees from third party harassment.  Miss Best referred us to specific paragraphs in Harvey and referred us to several authorities. 

 

7.       The tribunal considered the relevant provisions of the Order, the cases to which we were referred and Division J of Harvey relating to the rights of workers who are pregnant or on maternity leave.

 

8.       Miss Best referred us to the case of Hardman v Mallon t/a Orchard Lodge Nursing Home EAT 2002 in support of her submission that failure to carry out a risk assessment on a pregnant worker is in and of itself an act of discrimination related to pregnancy.

 

9.       In Harvey paragraph 605 to 607.01 in Division J it is clear that the Hardman case was not the last word on the subject of risk assessments.  The subsequent Court of Appeal decision in Madarassy v Nomura International PLC 2007 IRLR 246 makes clear that there is no absolute obligation on an employer to conduct a separate risk assessment for an employee.  In the Madarassy case the tribunal was held to have been in error in upholding the claimant’s case because there is no evidence before it that the claimant’s work was of a kind which could involve risk to her or her unborn baby.  In that case pain and discomfort felt from sitting in front of a computer for long periods was not the same as a risk to health or safety. 

 

10.     Harvey concludes at paragraph 607.01 that:  “There is no general or universal obligation to undertake a risk assessment whenever an employee discloses her pregnancy, albeit, … that it may be prudent for the employer to do so.  There must be evidence of some risk before the obligation is engaged.  Where there is such an obligation, the assessment must be sufficient to identify the risks and how they can be avoided or minimised, but there is no need for the assessment to be recorded in writing. …”  Harvey mentions the case of Stephenson where the risks involved in carrying heavy boxes were sufficiently addressed by instructing the claimant not to do so.

   

11.     Miss Best referred us to the case of Fletcher [2005] IRLR 689 CA in relation to the heating issue.  In Fletcher the Court of Appeal dealt with a case involving midwives whose bursaries were terminated when they were absent from training due to pregnancy and maternity.  The defence raised was that everyone with absence for any reason was treated in the same way and that the claimants could not therefore show less favourable treatment.  This argument failed.  The headnote of the report summarises the decision as follows:

                   

                  “No male comparator is required in order to demonstrate sex discrimination.  If the reason for the treatment is pregnancy, then the detriment resulting is unlawful sex discrimination even though other employees in the same circumstances are or would be treated the same way.

         

                  …

         

                  The established test is the “but for” test.  In the present case but for their pregnancies, the claimants would not have been absent.  Their absence caused the termination of their bursary payments.  Thus sex discrimination and causation were established.”

 

12.     We were referred to in detail to the case of Myles v Gilbank Court of Appeal 2006 EWCA Civ 543.  This case involved hairdressers and a personal award against the harasser which included £25,000 in respect of injury to feelings.  This case was presented to us as very similar to the current case.  In the Myles case the failure to make a risk assessment was one of a number of detriments which amounted to discrimination on grounds of pregnancy. 

 

13.     On harassment we were referred to the case of Reid v Stedman 1999 IRLR 299 EAT which outlines guidelines for tribunals in relation to assessing sexual harassment cases.  This case is cited in Harvey Division L at paragraph 417. 

 

14.     Harvey states “An employer may behave inappropriately or even unwisely without necessarily committing an unlawful act of sex discrimination – but he is certainly at risk if he does so.”

 

15.     In the same paragraph the case of Whitley v Thompson EAT 1167/97 was cited.   Guidance was outlined in that case as follows:

 

          “(1)     A characteristic of harassment is that it undermines the victim’s dignity at work and constitutes a detriment on the grounds of sex; lack of intent is not a defence.

 

          (2)      The words or conduct must be unwelcome to the victim and it is for her to decide what is acceptable or offensive.  The question is not what (objectively) the tribunal would or would not find offensive.

 

          (3)      The tribunal should not carve up a course of conduct into individual incidents and measure the detriment from each; once unwelcome sexual interest has been displayed, the victim may be bothered by further incidents which, in a different context, would appear unobjectionable.

 

(4)           In deciding whether something is unwelcome, there can be difficult factual questions for a tribunal; some conduct (eg sexual touching) may be so clearly unwanted that the woman does not have to object to it expressly in advance.  At the other end of the scale is conduct which normally a person would be unduly sensitive to object to, but because it is for the individual to set the parameters, the question becomes whether that individual has made it clear that she finds that conduct unacceptable.  Provided that that objection would be clear to a reasonable person, any repetition will generally constitute harassment.” (emphasis added)

 

(5)           The case of Western Excavating – v-  Sharp Limited 1978 IRLR 27 outlines the four key elements of constructive dismissal which the claimant must prove as follows: -

 

(i)     there must be a breach of contract by the employer;

 

(ii)      the breach must be sufficiently serious to justify the employee resigning;

 

(iii)    the claimant must leave in response to the breach and not for some other unconnected reason; and

 

(iv)   the employee must not delay too long in terminating the contract in response to the employer’s breach as otherwise she may be deemed to have waived the breach of contract.

 

(6)    As regards the delay point there is no fixed time within which an employee must make up her mind to resign in response to a breach of contract; the surrounding circumstances are key.

 

(7)    Under the “last straw” principle, an employee can be justified in resigning following a relatively minor breach of contract if it is the last in a series of acts, one or more of which, amounted to a breach of contract, and cumulatively the acts amounted to a sufficiently serious breach of contract to warrant resignation amounting to dismissal. 

 

(8)    The case of Malik [1997] 3 All ER 1 confirms that there is an implied term in the employment contract that the employer will not conduct itself in a manner likely to damage the relationship of trust and confidence between the employer and the employee.  If the employer breaches that term, it can amount to repudiation of the contract.

 

16.      The House of Lords decision in Shamoon -v- The Chief Constable of the Royal Ulster Constabulary 2006 UK HL 11 is the authority on what constitutes a detriment for the purposes of discrimination proceedings and gives guidance to tribunals on the approach to adopt.    The question for the tribunal in determining detriment is whether the treatment was of such a kind that a reasonable worker would, or might, take the view that, in all the circumstances, it was to his detriment.  It is not necessary to demonstrate some physical or economic consequence and an unjustified sense of grievance cannot amount to a detriment.  It is therefore an objective test which must be applied.  A tribunal should look at the reason for the treatment and if that reason was unconnected to the prohibited grounds alleged, then no less favourable treatment or detriment is proved

 

FINDINGS OF FACT AND CONCLUSIONS

 

17.     The tribunal considered the evidence, submissions, legislation and case law and found the following facts and reached the following conclusions having applied the law to the facts found.

 

General

 

18.     The claimant was employed as a Salon Manager by Paul and Leisa Stafford at the Paul Stafford Hairdressing Salon on the Lisburn Road in Belfast.  The claimant was employed from 21 July 2008 until 24 October 2011 when she resigned with immediate effect.  The claimant started her new job on 28 October 2011.

 

19.     The bulk of the claimant’s duties were performed at the reception desk on the ground floor of the salon.

 

20.     We are satisfied that the period from September to the end of December 2010 was a period of considerable upheaval for the Stafford’s business for the following principal reasons:-

 

          (1)      At the beginning of September 2010 the tenant in the Stafford’s premises on the Stranmillis Road went out of business leading the Staffords to set up a branch of their salon in those premises as quickly and economically as possible.

 

          (2)      There was a downturn in business which began in October 2010 and progressed through the extremely cold weather of that winter and included a 50% slump in business and the forced closure for a period of the Lisburn Road premises (in common with other premises in the area) due to the severe downturn in business as a result of the exceptional snow and cold weather.

 

          (3)      The opening of the new business on Stranmillis meant that half the staff from the Lisburn Road were moved to Stranmillis.

 

          (4)      Three senior staff left the business.

 

          (5)      The heating system in both premises were broken.

 

21.     The claimant commenced her maternity leave on 27 December 2010 and her baby was born on 16 February 2010.  Her statutory maternity pay ran out on 25 September 2011.

 

22.     At the beginning of July 2010 the claimant informed Mr and Mrs Stafford that she was pregnant.

 

23.     The claimant claimed that her employer’s attitude towards her changed from the beginning of September 2010 and that her treatment thereafter amounted to discrimination related to her pregnancy.  The claimant cited several matters and invited us to conclude that the Staffords displayed a discriminatory attitude to her that led to her suffering detriment.  Our consideration and conclusion on each allegation is set out below.

 

Discrimination

 

Removal from payroll

 

24.     The claimant had a meeting with Mr Stafford at the beginning of September 2010 when she was told that she would no longer be doing the payroll for staff and that this would be carried out by Ms McColgan who was a friend of Mr Stafford’s and a qualified accountant.  Whilst the claimant gave the impression in her evidence that her responsibility for payroll was removed in September 2010, she agreed in
cross-examination that in fact she dealt with payroll in September, did the payroll with Ms McColgan in October and agreed that the first time Ms McColgan did the payroll on her own was in November which was one month before the claimant went off on maternity leave at the end of December 2010.

 

25.     It was the claimant’s case that the removal of her payroll duties amounted to an act of discrimination related to her pregnancy.  We do not accept that this amounted to an act of discrimination.  Whilst the reason for Ms McColgan taking over payroll duties was because the claimant was going on maternity leave, we do not regard the claimant to have suffered a detriment in the circumstances of this case.  It was clearly a sensible course of action for the employer to take to ensure that there was a handover period before the claimant went off on maternity leave to ensure that the payroll was carried out by someone during her absence.

 

Working conditions

 

26.     The claimant made the following complaints about her working conditions between September and December 2010:-

 

(1)    that she had to stand for long periods of up to 4-5 hours at busy times;

 

(2)    that no cover was provided for her after the other receptionist Miss Nic Giolla Chomhain was moved in September 2010 to Stranmillis;

 

(3)    that the chair provided for her was inadequate;

 

(4)    that there was insufficient space for her to place a chair so that she could sit comfortably to operate the computer system, the door buzzer and answer the telephone; and

 

(5)    that the lack of heating during the exceptionally cold weather in November/December 2010 caused her problems.

 

27.     Whilst the claimant’s evidence gave the impression that there was a long period when she had no cover and that this meant she could not take breaks, it transpired in cross-examination that the period for which she had nobody with her at reception was one week in mid-October as for the remainder of the period from
mid-October 2010 she had Miss Treanor, a new receptionist, in attendance to assist her.  In that one week, cover could be provided by AM on all but 2 days as required.

 

28.     The respondents denied that the claimant was unable to get cover, and stated that she was able to sit in the chairs in reception on a regular basis as business was not busy during that period for the reasons outlined at paragraph 26  above.

 

29.     The burden is on the claimant to prove facts from which we could conclude that an act of discrimination occurred.  We are not satisfied that the claimant has discharged the burden of proving that she was forced to stand for long periods without a break and without cover.  We do not accept that the claimant in this period was so busy that she could not move from the reception desk and take a seat in the reception area.  The claimant has not persuaded us that she suffered a detriment due to her pregnancy in the two days in one week that she was on reception on her own as business was not busy and she had stylists who could cover for her to take her breaks and she was able to sit in reception as needed.

 

The chair issue

 

30.     Whilst the claimant alleged that the chairs provided to her were inadequate, the real issue was the fact that no chair would have been adequate because of the limited space behind reception for a pregnant woman to sit in any chair.  The real problem therefore was the requirement of the claimant either to stand at reception or sit uncomfortably or to sit as much as she could in the comfortable chairs in the reception area.

 

Heating Issue

 

31.     There was no evidence before us that the difficulties of heating were a particular problem for the claimant or for pregnant women generally.  Miss Best relied on Fletcher to support her argument that, even if everyone was affected by the lack of adequate heating during the cold spell, the fact that the claimant was pregnant meant that any discomfort she felt amounted to discrimination.  We do not accept that the Fletcher decision supports that argument and we do not find this to be a detriment relating to the claimant’s pregnancy. 

 

Move to Stranmillis

 

32.     The claimant alleged that the Staffords failure to consider moving her to Stranmillis where there was more room at reception constituted less favourable treatment on grounds of her pregnancy.

 

33.     We accept the respondent’s evidence that it was not an option to move the claimant to the Stranmillis site for the following reasons

 

(1)    the computer system in Stranmillis was not operative;

 

(2)    the claimant as manager was needed at the core of the business which was at the Lisburn Road site;

 

(3)    there was no new business in Stranmillis as the business moved with the staff who had moved there and bookings continued to be taken at the Lisburn Road Salon for them because that is where they were previously based.

 

34.     The respondent’s case on this point was that although the claimant was in some discomfort because of the design of reception there was ample seating in the reception area; she had a full time assistant in Miss Treanor for all but one week in the relevant period and others could, and did, provide cover for her breaks in that week.  In addition, at no stage did the claimant ask to be moved.  We therefore find that any failure to consider moving the claimant to Stranmillis did not constitute less favourable treatment on grounds of her pregnancy.

 

Risk Assessment

 

35.     The claimant alleged that the fact that a risk assessment was not carried out on her amounted to an act of discrimination related to her pregnancy.  The claimant further alleged that, if a risk assessment had been carried out it would have resulted in the following:

         

          (1)    That she would have been moved to the Stranmillis salon where the configuration of reception would have been more comfortable for her and,

 

          (2)    it would have shown the difficulty the claimant was having with the lack of heating and with the lack of adequate seating and  steps would then have been taken to address these problems.

 

36.     We do not accept Mrs Stafford’s evidence that she carried out her own risk assessment for the principal reason that this was first raised during the tribunal hearing and had not been raised before in the course of the grievance procedure nor in the response form.  We therefore find that no risk assessment was carried out even after the claimant flagged up the issue at the end of October.

 

37.     We do not accept that the failure to carry out a risk assessment is of itself an act of discrimination.  The issue is whether or not there was something about the claimant’s job or the conditions in which she had to work which meant that there were potential risks to her or her unborn child.  The question we have to decide is whether or not the requirement to carry out a risk assessment was triggered by the claimant specifically pointing it out to Mrs Stafford in general terms.

 

38.     In view of the discussion of this matter in Harvey in the paragraphs following and relating to the Hardman case we do not accept the submission that failure to carry out a risk assessment is of itself an act of discrimination.  For the obligation to be triggered the work involved needs to be of a kind which could involve a risk by reason of the woman’s condition to the health and safety of the woman or to that of her baby. 

 

39.     In this case there is no evidence that the duties of the claimant, per se, involved a risk to her or her unborn child, in circumstances where the claimant was provided with assistance in her duties by Miss Treanor, was provided with cover for all but two days, did not, in practice, have to stand for long periods without breaks as there were others who could cover for her and there was seating available to her for her to rest in between her duties.

 

40.     In our view the factual circumstances in Myles are completely different in their extent and in the degree of severity compared with Ms Donnelly’s case.  The Myles case does not provide authority that failure to carry out a risk assessment, of itself, amounts to discrimination particularly in view of the detailed consideration of this area in the subsequent Court of Appeal decision in Madarassy.  We note that the Myles case is not cited by Harvey in the paragraphs to do with risk assessments.

 

41.     In summary, there was no requirement to carry out a risk assessment.  The failure to carry out a risk assessment did not result in detriment to the claimant in view of our findings relating to cover at reception, the seating, heating and move to Stranmillis. 

 

Payment of salary

 

42.     The claimant’s pay for December 2010 was paid by cheque rather than BACS.  The claimant alleged that, as she was the only member of staff paid by cheque and she was on maternity leave, this amounted to an act of discrimination.  We do not accept the claimant’s case on this point.  Adopting the Shamoon approach we have considered the reason for the cheque being paid to the claimant and find that it was unconnected to her sex, pregnancy or maternity leave for the following principal reasons:-

 

          (1)      The reason for payment by cheque was the cash-flow difficulty in the business.

 

          (2)      The claimant and others had received payment by cheque in the months prior to that date when there were cash-flow issues.

 

          (3)      We accept Ms McColgan’s evidence that she picked the claimant to be paid by cheque because the claimant had taken cheques before without difficulty.  Her evidence was that the claimant told her in October (when showing her how to do the payroll) that if there were not enough funds, she took a cheque.

 

          (4)      We accept Mr Stafford’s evidence that he assumed that the claimant would not object as she had not objected before.

 

43.     In view of these circumstances, we accept that the reason for her being paid by cheque was because of the cash flow difficulties and was not tainted by the fact that she was on maternity leave or pregnant.

 

44.     The claimant alleged that the late payment of her salary for the end of December 2010 amounted to discrimination as she was then on maternity leave.  This occurred because everyone’s payment changed to being paid monthly.  It was not done because the claimant was on maternity leave but affected everyone and was thus unconnected to her pregnancy/maternity leave.

 

45.     The claimant’s pay was late in May 2011 because of a changeover in bank details and this was not related to her maternity leave.  We therefore do not find it to amount to a fact from which we could conclude that discrimination occurred.

 

46.     The claimant alleged that she had made an agreement with Mr Stafford and Ms McColgan that she could take holidays at the start of her maternity so that her pay would not drop immediately she went on leave and that this agreement was not honoured meaning that she received that pay at the end of her maternity leave in line with her entitlement.  Even if Mr Stafford agreed to this, we do not regard it as a detrimental act related to her pregnancy or maternity leave as the claimant has not discharged the burden of showing that any such act was done on those grounds.  It is important to note that what the tribunal must be satisfied of is that less favourable treatment on a prohibited ground occurred and not simply that the claimant may have suffered unfair treatment.

 

Exclusion from regular meetings

 

47.     The claimant alleged that she was excluded from regular meetings with the Staffords following the announcement of her pregnancy. We do not accept the claimant's case on this point as, firstly, the claimant changed her case in this regard during the proceedings and, secondly, it became apparent in the hearing that meetings continued to be held daily with Mrs Stafford as before and periodically with Mr Stafford.  The reason for the less frequent contact with Mr Stafford was because of his pre-occupation with his business difficulties and the setting up of the Stranmillis salon.  This reduced frequency was not related to the claimant’s pregnancy.

 

48.     The claimant alleged that the course of discriminatory treatment started at the beginning of September 2010, that is, two months after she informed the Staffords that she was pregnant.  This gap weakens the claimant’s case that a course of discriminatory conduct occurred.

 

Ante-natal appointment

 

49.     The claimant had attended her ante-natal appointments on a Monday which was her normal day off.  As her Doctor changed the date of the appointment to a Tuesday, the claimant required the day off to attend three separate ante-natal appointments on that day.  As this was on a working day the claimant required permission to take the day off to attend the appointments on Tuesday, 2 November 2010.

 

50.     There was a conflict of evidence between the claimant and her witness and Mrs Stafford and her witness in relation to the discussions on the day the claimant requested time to attend her ante-natal appointment.  We assessed carefully the demeanour of the witnesses in the context of all the evidence in deciding whose evidence we preferred.

 

51.     Both the claimant and Mrs Stafford accused each other of acting aggressively in the encounters they had on the day when the issues of the ante-natal appointment and the risk assessment were raised.  It was clear to us that there is particular bitterness felt by both of these individuals to each other and it is our view that the souring of the relationship between the claimant and her employers (and particularly with Mrs Stafford) stemmed from the encounters on that day. 

 

52.     We prefer the claimant’s account (set out below) of the encounters on that day for the following principal reasons:-

 

          (1)      We found Miss Treanor to be a particularly clear and credible witness and her evidence was that she witnessed Mrs Stafford raising her voice at the claimant and saying that she was not entitled to any paid time-off for
ante-natal appointments.

 

          (2)      We found Mrs Stafford’s evidence to be unreliable in several respects particularly with regard to the point at which she became aware that the reason the claimant needed the time off was for ante-natal appointments.

 

          (3)      Whilst Ms McCausland did not hear any reference to ante-natal appointments she was not present at reception at all times and it was therefore possible that the references took place in her absence whilst Miss Treanor was stationed at reception.

 

53.     On Friday 29 October 2010 the claimant requested the following Tuesday off for attendance at three ante-natal appointments and Mrs Stafford reacted badly to this by raising her voice and stating that she was not entitled to paid time-off for the appointments.  When the claimant stood her ground over the issue and then made mention of the requirement to carry out risk assessments, Mrs Stafford perceived this as a challenge to her authority which made her feel humiliated and belittled in front of her staff.  Even when it was made clear to Mrs Stafford that the claimant was going to use hours that she was owed, this did not satisfy Mrs Stafford who continued to quibble about the claimant’s right to take the paid time off.

 

54.     Mrs Stafford gave evidence that one of the reasons she queried the time off was because her concern was that it was ‘a bad management decision’ for her manager the claimant to take a day off at the same time as Miss Nic Giolla Chomhain which left only the inexperienced Miss Treanor on reception in Lisburn Road.  We find that this latter point does not detract from the fact that the refusal of paid time off made in an aggressive way constituted an act of sex/pregnancy discrimination.  The reason for the treatment was that the claimant had asked for the paid time off.  The detriment was firstly, that she had to stand her ground in the face of an adverse reaction and had to press her point again later that day, and secondly, that she had to use time owed to get the time off.  The claimant is entitled to receive pay for the day which she had to use time owed to attend the ante-natal appointments.  The agreed figure for this is £100.74. 

 

55.           The claimant is also entitled to compensation for injury to feelings for this discrete act of discrimination.  We assess compensation to fall in the low Vento band and award £2000.  The factors we have considered in deciding on this sum are as follows:

                             

          (1)    This was a one-off act;

 

          (2)    the claimant did actually get the time off;

                                       

          (3)    the claimant had to use time owed to her;

 

          (4)    payment for that day was not made even though it should have been clear that the claimant was owed it;

 

          (5)    the grievance did not uphold the claimant’s complaint on this point when the claimant’s entitlement  should have been clear;

                                       

          (6)    the claimant was understandably upset at the encounter with Mrs Stafford;

 

          (7)    it should not have been for the claimant to press her for right; rather it was incumbent on the employer to ensure that she was afforded her leave and paid promptly.

 

Grievance issue

 

56.     The claimant raised a grievance on 24 May 2011 which referred to all of the

          allegations raised in her claim to the tribunal.  This was dealt with at a hearing on

          6 June 2011.  The outcome was in writing and told claimant of her right to appeal.

 

57.     The grievance procedure completed with an outcome communicated in writing to the claimant on 23 August 2011 following the appeal which was dealt with by an external consultant (Mr Stewart) and included an appeal meeting with him on 2 August 2011.  The  procedure complied with the basic statutes of procedure.

 

58.     The claimant alleged that the grievance process was flawed and was a sham and that this amounted to discrimination.  She also alleged that her treatment by Mr Stewart at the appeal meeting on 2 August 2011 and the outcome letter of the 23 August amounted to the last straw which led her to resign on 24 October 2011.  Her claim was that this constituted a breach of contract and her resignation therefore amounted to constructive dismissal.

 

59.     In summary the flaws alleged were: that there was no investigation into the grievance; that it was not taken seriously by Mr Stafford; that Mr Stafford was involved in the grievance when he was the person the claimant was complaining about; that Mr McKernan was involved in drafting the letter of outcome of the grievance when he was a person who was complained about; and that the attitude of Mr Stewart in the appeal meeting was aggressive and dismissive.

 

60.     The appeal outcome was that it was accepted that the claimant's pay was late twice, that no risk assessment was carried out and that the heating was broken for a period but it was not accepted that this amounted to discrimination or harassment.  All the other allegations were found not to be substantiated.

 

61.     The first issue for us is whether the conduct of the grievance and its outcome amounted to discrimination. Whilst some of the points made by the claimant (specifically the involvement of Mr Stafford and Mr McKernan) could amount to flaws in procedure, there was no evidence that these flaws were related to the claimant’s sex, pregnancy or maternity leave. The burden is on the claimant to prove facts from which we could conclude that this amounted to less favourable treatment on grounds of sex, pregnancy or maternity leave. We are not satisfied that the claimant has discharged that burden for the principal reason that we have found that each allegation (except the discrete issue of the refusal of paid time-off for a day for ante-natal appointments) did not amount to discrimination or harassment. 

 

62.     In addition, in the grievance process several of the claimant’s allegations were found to be proved, albeit that the allegations that they constituted discrimination was rejected.  It is also clear from the papers presented in evidence, that an investigation was carried out involving writing to several witnesses and interviewing those who responded.

 

63.     The failure to find for the claimant on the ante-natal appointment issue compounded the discrimination which she earlier suffered and has added to the compensation awarded.  We do not accept, however, that this means that the flaws in the grievance process amounted to additional discrimination.

 

Comments to clients

 

64.     The claimant made two allegations against Mr Stafford and Mrs Stafford about alleged comments made by them to clients relating to part-time managers and relating to whether the claimant was returning from maternity leave.  The individuals who are alleged to have heard the comments being made and who reported this to the claimant did not appear to give evidence before us.  We discounted the evidence in relation to these matters for the following reasons:

 

(1)      It is hearsay and the individuals cited by the claimant were not called to give evidence or to be cross examined; and

 

(2)      There was uncontested evidence that the Staffords had a mainly female workforce, had previously had several females on maternity leave, had facilitated requests for part-time work on return from maternity leave and that only one member of staff had failed to return completely from maternity leave.

 

65.     In these circumstances we do not find that the Staffords had an adverse attitude to females who took maternity leave generally nor do we find that these allegations illustrate that the Staffords discriminated against the claimant in relation to each of the claimant’s allegations.  We have found the ante-natal appointment issue to be a discrete act of discrimination.

 

Unfair dismissal

 

66.     Any flaws in the grievance process are relevant to any unfair dismissal case if the claimant surmounts the first hurdle of proving that she was dismissed.  The alleged final straw occurred on the 23 August 2010 and the claimant resigned on 24 October 2010.   It is for the claimant to show that the elements outlined in the Western Excavating v Sharpe case are present.    We had no evidence to explain the delay in resigning except that the claimant was considering the outcome of the appeal hearing. 

 

67.     We find that the delay of two months in this case means firstly, that the claimant waived any breach and secondly, that her resignation may not have been in response to any breach but may have been for an unconnected reason as we note that the claimant started her new job on the 26 October 2011, two days after her resignation.  We are not satisfied that the claimant resigned sufficiently promptly following the alleged breach of contract and we do not, therefore accept that she was dismissed.  The claim of unfair dismissal is therefore dismissed.

 

Harassment

 

68.     The claimant claimed that she had suffered harassment due to the following alleged behaviour of Mr McKernan:

 

          (1)    That in the four month period between September and December 2010 Mr McKernan did the following:

 

                          “Came in at least once or twice a week to the salon and he would stick his stomach out at me and rub it with an irritating laugh he would then make inappropriate remarks about my size 'are you sure you can still fit in behind that desk”'.

 

          (2)    On one occasion in the street after work when the claimant was locking up the salon she heard shouting and looked up and saw John McKernan shouting out of his car at her saying:  “That’s some waddle you’ve got there.”

 

          (3)    That Mr McKernan sent two texts to the claimant in January 2010 when she was on maternity leave asking for her email address and a home address as he had matters to raise with her. 

 

69.     Mr McKernan completely denied making any of the alleged comments or gestures.  He stated that the texts were sent to enable him to contact the claimant to obtain some clarification on an office system which was required for a VAT inspection. 

 

70.     The claimant’s case on the texts was that she did not object to receiving contact during her maternity leave but objected to the fact that it was Mr McKernan who contacted her and  objected to her mobile phone number being given to him.

 

71.     We do not accept that the sending of texts by Mr McKernan amounted to harassment.  We accept the respondent’s evidence that information was required for a VAT inspection and that the claimant as salon manager was best placed to clarify matters with Mr McKernan.  Mr McKernan was paid by the Staffords to carry out certain functions for the business and it was legitimate for him to contact the claimant and for the Staffords to give him her phone number in order to do that.  We find that being contacted by Mr McKernan did not subject the claimant to any detriment. 

 

72.     We find that Mr McKernan did make the comments in the salon and the gestures alleged by the claimant for the following principal reasons:

 

          (1)    The claimant was consistent in her account on this point;

 

          (2)    We accept the evidence of Mr Stinton who stated that he observed on four or five occasions that Mr McKernan:

 

                          “used to come in and stick his stomach out at Siobhan and then laugh at her. … he would stick his stomach out laugh and ask Siobhan if she could still fit behind the desk.  Siobhan would usually ignore him and I did the same.”

 

73.    In deciding that we do not believe Mr McKernan’s account we have specifically taken no account of the fact that we were informed after the hearing by correspondence from the claimant’s solicitors that Mr McKernan filed for bankruptcy shortly before the hearing before us and that this was shortly after Mr Ferguson ceased to represent him.  The bankruptcy and its timing were not relevant to our deliberations in this case.

 

74.     Miss Best submitted that the words used amounted to harassment on grounds of sex because the claimant was very upset by them.  Whilst the claimant’s reaction to the words used is one factor for us to take into account, it is for us to decide whether, in the circumstances, the words used and the behaviour was such that it should reasonably be regarded as having the required purpose or effect namely of violating the claimant’s dignity or of creating an intimidating hostile degrading humiliating or offensive environment for her.

 

75.     The burden is on the claimant to prove facts from which we could conclude that what occurred constituted conduct having the required purpose or effect.

 

76.     We have considered carefully the words used in the context of the circumstances of this case and it is our conclusion that the gestures and words used should not reasonably be considered as having that effect for the following reasons:

 

          (1)    The words are not in themselves clearly unwelcome or offensive:  context is key.

 

          (2)    At no stage did the claimant complain to the Staffords until she raised the issue in the written grievance on 24 May 2011 which was many months after the alleged behaviour and many months after the claimant went on maternity leave and away from any allegedly hostile working environment.  There is nothing to suggest that it was ever indicated to Mr McKernan that his comments offended the claimant; in particular we note that Mr Stinton made no reference to the claimant being upset and simply stated that she ignored him.  We also note that whilst Miss Treanor (the claimant’s assistant) gave evidence on her behalf she made no reference to the effect of any such comments on the claimant nor indeed did she refer to the comments at all;

 

          (3)    Mr McKernan, following one of his conversations with the claimant elicited that she was having back problems and he took it upon himself to buy a chair from Ikea for her and paid for that out of his own money.

 

          (4)    A key point in the claimant’s complaint was that the space behind reception was inadequate for someone  in her condition and in this context the comments made by Mr McKernan namely:  “Are you sure you can still fit behind that desk?”, in our view should not reasonably be taken to be offensive.

 

          (5)    We do not accept the apparent proposition by the claimant’s representative that any comment about a pregnant woman and her size is in, and of, itself discriminatory.  We regard this as an unrealistic and unreasonable proposition as context is key in this regard.  This is made clear in the guidance by the Court of Appeal outlined in paragraph 15 above.  The words used do not, in our view, constitute words which are clearly offensive of themselves.  In general, it can often be innocuous or, indeed, solicitous for an employer or colleague to refer to a pregnant woman’s size in relation to any discomfort she may feel in an effort to explore ways of improving things for her.

 

          (6)    We are fully aware that many pregnant women feel in a vulnerable position and feel unable to complain in the face of unwanted offensive conduct.  However in this case the claimant was able to press Mrs Stafford about her right to paid time off for ante-natal leave in the face of an aggressive reaction and she was able to press her point that her view was that a risk assessment was required in the circumstances of her job.  In these circumstances we regard it as significant that the claimant made no complaint about the alleged comments until the grievance was raised in May 2011. 

 

          (7)    We accept that there is no need for an individual to complain of alleged harassment but the lack of a complaint is a factor for us to consider when considering whether or not the claimant was actually offended by the alleged conduct so long as the words used are not clearly offensive.

 

77.     For all the above reasons we find that the claimant has failed to discharge the burden of proof in relation to the allegation of a harassment against Mr McKernan.

 

78.     In reaching this conclusion we have considered whether or not Mr McKernan’s denial of the comments lends weight to the claimant’s claim that they amounted to discrimination.  Our conclusion is that his denial would likely have increased the compensation we would have awarded if we had found the comments to meet the statutory definition of harassment.  We do not, however, regard Mr McKernan’s denial as evidence that the comments made were discriminatory. 

 

79.     Given that we have found Mr McKernan to have made the comments in the salon we accept the evidence of the claimant and her partner that the comment in the street namely: “That's some waddle you've got there”, did occur.  We do not regard that comment as meeting the statutory test either as there was a degree of familiarity in ongoing dealings between Mr McKernan and the claimant where comments were made by him relating to her size without any sign of offence being taken, and where he bought a chair for her of his own volition.  In addition it is significant that the claimant did not complain about this comment until she raised this in the grievance months later. 

 

80.     We therefore do not need to consider whether the alleged comment in the street after working hours is sufficiently connected to the claimant’s employment for it to be covered by the Order. 

 

SUMMARY

 

81.     The claim for harassment on grounds of sex is dismissed against all respondents.

 

82.           The claims of unfair dismissal and discriminatory dismissal are dismissed as the claimant resigned and was not dismissed.

 

83.     The sum of £2000 is awarded for injury to feelings against the first three respondents as the claimant’s employers in respect of unlawful discrimination on grounds of pregnancy.  The claimant is also awarded the sum of £100.74 equating to a day's pay day in respect of the ante-natal appointments on 2 November 2010.

 

84.           We are satisfied that interest on the award for injury to feelings is payable. 

 

85.           The calculation of compensation is as follows:

 

          Date of act of discrimination:        28 October 2010

          Date of calculation                       28 April 2012

         

          Injury to feelings                                    £2000.00

 

          Interest: 18 months x 8% x £2000  £   240.00

          Pay owed                                             £    100.74

          Total compensation awarded:       £2,340.74

 

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

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:  13, 14, 15, 16 February 2012 at Belfast

 

 

Date decision recorded in register and issued to parties: