Shannon v Kilmore Quay Resort Ltd, t/a W... [2013] NIIT 00591

THE INDUSTRIAL TRIBUNALS

CASE REF: 591/13

CLAIMANT: Grainne Shannon

RESPONDENT: Kilmore Quay Resort Ltd, t/a Watermill Restaurant with Rooms

DECISION

It is the decision of the tribunal that the claimant was automatically unfairly dismissed by the respondent in connection with her taking statutory adoption leave, and also automatically unfairly dismissed on procedural grounds. The tribunal has not found that the respondent’s treatment of the claimant constituted sex discrimination and that claim is dismissed. The respondent is required to pay the claimant the sum of £15,791.06 calculated in accordance with paragraphs 17 to 25 of this Decision.

Constitution of Tribunal:

Chairman (sitting alone): Ms W A Crooke

Appearances:

The claimant did not attend.

The respondent did not attend.

SOURCES OF EVIDENCE

1. The case was called for hearing but no one attended on either side. However, the claimant had submitted a file of documentation prior to the hearing and this was considered by the tribunal in reaching its decision. The respondent did not provide any reply to the claimant’s claim, did not provide any documentation and did not instruct any representation.

THE CLAIM

2. The claimant claimed that:

(1) she had been unfairly dismissed;

(2) she had suffered sex discrimination;

(3) she was entitled to a redundancy payment;

(4) she was entitled to a payment in lieu of notice; and

(5) she was entitled to a payment to reflect holidays untaken at the date of termination.

THE RELEVANT LAW

3. The relevant law is contained in:

(a) The Employment Rights (Northern Ireland) Order 1996 at Article 70(c)(2)(ba);

(b) Paternity and Adoption Leave Regulations (Northern Ireland) 2002; and

4. In reaching its decision the tribunal also considered The Sex Discrimination (Northern Ireland) Order 1976.

THE FACTS

5. The claimant was employed as Financial Manager by the respondent from the 10 October 2011 to 31 January 2013. This gave her one complete year of service with the respondent. As her date of birth was 29 December 1966 she was 46 years of age at the date of termination of her employment.

6. The claimant commenced adoption leave on 1 October 2012 and intended to return to her employment after her adoption leave expired.

7. At the end of December 2012 Mr Walter Russell, one of the directors, contacted the claimant to ascertain when she would return to work as her adoption leave “cover” had left. The claimant was unable to give a date at that stage but indicated that she would give eight weeks notice of her intended date of return.

8. The claimant was in receipt of statutory adoption payments from the respondent and attended at the respondent’s premises, The Watermill Restaurant on 25 January 2013 to obtain documents to support her claim for statutory adoption allowances. On that date, one of the claimants day-to-day Line Managers, Mr Pascal Brissaud, met with the claimant and treated her in an intimidating and threatening manner. He demanded the passwords for her log-on details to the company computer and the company on-line banking system. He then told her “You’re not needed anymore, you’ve got your money, just go. The place is closing, none of this is any of your concern.” Mr Brissaud stood over the claimant while she collected her personal belongings. She then left. The claimant raised a grievance with the respondent by a letter dated 13 February 2013 but it did not receive any reply. The claimant received statutory adoption payments from the respondent for the period up until 31 January 2013.

9. The respondent ceased trading on 31 January 2013 but remained liable to pay statutory adoption payments despite the fact that the claimant was no longer employed by it. By a letter of adjudication from HM Revenue and Customs NIC and EO to the claimant dated 29 April 2013, the claimant was informed that she was entitled to receive statutory adoption pay from 1 October 2012 to 30 June 2013 and indicated that it was the intention of HM Revenue and Customs to pay the adoption payments to her until this date as the claimant was not paid her full entitlement of statutory adoption pay by the respondent.

10. By an advertisement in the “Impartial Reporter” on 28 February 2013, the claimant noted that Watermill Lodge (under new ownership) was recruiting for staff with the contact being Valerie (presumed to be Valerie Smyth who had been one of the claimant’s Line Managers during her employment).

11. In an article in the “Fermanagh Herald” about the Watermill in the edition on Wednesday, 29 May 2013, the claimant found out that Mrs Valerie Smyth and Mr Pascal Brissaud after a temporary closure were operating the Watermill as a restaurant with Mr Pascal Brissaud being the Head Chef. Furthermore, in this article Mr Brissaud reported business as being “very good”.

“We have been up and running again for the past three months, and getting busier all the time. We had 200 in last Sunday, and, during the week, the restaurant is quite busy, with a lot of our old patrons retiring (presumed to be [Tribunal’s addition] returning) to us.”

12. In seeking to dismiss the claimant the respondent did not comply with its obligations in Schedule One to the Employment (Northern Ireland) Order 2003.

CONCLUSIONS

13. The tribunal finds that the claimant was automatically unfairly dismissed in connection with her taking statutory adoption leave. The tribunal considers that the claimant has fulfilled her requirements to produce enough evidence to raise a presumption that this was the reason for her dismissal. She was on adoption leave from 1 October 2012, and did not immediately agree to come back at the end of December 2012 when her “cover” did not continue to work for the respondent. Only a very short time later - on 24 January 2013 she was told that she was not needed any more and the place was closing. The words used to the claimant were sufficiently clear to amount to a dismissal and she was not given any other information. Perhaps most tellingly, the respondent did not provide a reply to the claimant’s claim. On the balance of probabilities the tribunal considers that this means that the claimant was more likely than not to be correct in saying that her dismissal was because of her taking adoption leave. This is a prescribed reason contrary to Article 70(c)(2)(ba) of the Employment Rights (NI) Order 1996. Certainly she was not being allowed to return from adoption leave.

14. The tribunal also considers that the claimant was unfairly dismissed on procedural grounds. The claimant is therefore entitled to have her basic award uplifted to give her an amount of four weeks’ gross pay instead of the one week to which she would otherwise have been entitled. In the particular circumstances of this case including the intimidating and threatening way in which the claimant was actually dismissed the tribunal considers that the claimant is entitled to an uplift in her compensation at the amount of 50% in accordance with Article 17(3)(c) of the Employment (Northern Ireland) Order 2003.

15. However, the claimant has not explained how the breach of Article 70(c)(2)(ba) also constitutes direct discrimination on the grounds of her gender. In this area the claimant has the burden of proving such facts that would enable the tribunal to draw the inference that the less favourable treatment was on the grounds of gender. Put simply, she was on adoption leave, told to leave her employment as the place was closing and was not allowed to return. We do not consider that these are sufficient facts to raise an inference of sex discrimination being the cause of the treatment. It could be the ongoing financial difficulties at the time in question that caused the treatment.

16. The claimant claimed that she had been discriminated against as she did not believe that Mr Pascal Brissaud would have adopted the same intimidatory threatening attitude towards her with a man. The tribunal accepts the claimant’s evidence that Mr Brissaud treated her in a totally unacceptable manner, but as the claimant has not put forward any comparator evidence the tribunal does not consider that there is enough evidence before it to justify a finding that the claimant suffered harassment on the ground of her sex as required to comply with Article 6A(1)(a) of the Sex Discrimination (Northern Ireland) Order 1976. Insofar as the claimant has also made any claim for direct discrimination on this ground, for the same reason the tribunal dismisses this claim.

ASSESSMENT OF COMPENSATION

17. At the time of dismissal the claimant was 46 years of age and had one complete year of service with the respondent when she was over the age of 41 years. This entitles her to a multiplier of 1.5.

At the time of dismissal the claimant earned the amount of £1,708.33 per month gross and the figure of £1,372.61 net. These figures equate to a weekly wage of £394.23 gross and £316.75 net.

18. The claimant, while indicating that she has applied for Jobseeker's Allowance, has not informed the tribunal whether or not she was successful in her application which was only recently lodged in July 2013. In the circumstances, the tribunal is not able to make any recoupment order.

AUTOMATIC UNFAIR DISMISSAL ADOPTION LEAVE

A basic award would usually be calculated as follows.

19. £394.23 x 1 x 1.5 = £591.35

20. The uplift for failure to comply with statutory dismissal procedures entitles the claimant to four weeks gross pay as her basic award and this is the sum of £1,576.92.

IMMEDIATE LOSS

21. The claimant was dismissed on 24 January 2013 but was paid up to and including 31 January 2013 so her immediate loss period runs from 1 February 2013 to 31 August 2013 (being the date of calculation of compensation) which is a period of 30 weeks.

£316.75 x 30 weeks = £9,502.50

22. From this the amount of statutory adoption pay paid by HMRC from 1 February 2013 to 7 April 2013 must be deducted and this is calculated as follows:-

9 weeks at the rate of £135.45 = £1,219.05.

12 weeks at the rate of £136.78 from 8 April to 30 June being a total of £1,641.36.

This is a total amount of £2,860.41.

£9,502.50 - £2,860.41 = Total net immediate loss award £6,642.09.

23. In accordance with paragraph 14 above of this Decision the amount of the compensatory award is being increased by 50% and therefore the claimant’s compensation under this calculation is £6,642.09 x 50% = an uplift of £3,321.05.

The total uplifted award for immediate loss is therefore £9,963.14.

LOSS OF STATUTORY RIGHTS

24. Given the claimant’s length of service with the respondent the tribunal considers that she is entitled to the figure of £300.00 to reflect her loss of statutory rights. This figure is also to be uplifted by 50% and accordingly the total award for loss of statutory rights is £450.00.

FUTURE LOSS

25. The claimant did not provide any information on how long she thought it would take her to find a job of equal status and remuneration to that which she had with the respondent. The employment situation in Northern Ireland is still a difficult one. However, given the wide-ranging job description of her employment with the respondent - general bookkeeping, administrative duties, HR duties and secretarial duties, it is plain that this claimant has a lot of skills and experience to offer and it should not be a long time before she is able to obtain fresh employment. The tribunal is awarding her a period of eight weeks net pay to reflect future loss.

£316.75 x 8 = £2,534.00.

£2,534.00 uplifted by 50% = £1267.00.

This gives the claimant a total future loss of £3,801.00.

The total award for unfair dismissal is therefore £15,791.06.

26. The tribunal does not consider that the claimant is entitled to a redundancy payment for two reasons:-

(a) she has insufficient service;

(b) given the fact that the Watermill Restaurant re-opened within such a short period and according to the report in the Fermanagh Herald of 29 May 2013, is doing so well, it is far from clear whether or not the claimant was actually redundant.

As the claimant had only one completed year of service she is entitled to one week’s pay in lieu of notice. However, as she was dismissed on 24 January 2013 and paid up to and including 31 January 2013, this claim is dismissed.

27. The tribunal is also dismissing the claim for holiday pay as there was insufficient information before it to support the claimant’s claim that she was entitled to two days of holiday pay.

28. The tribunal considered from the documentary evidence before it that it was possible that an argument that the claimant’s contract of employment had been transferred to Ms Valerie Smyth as owner of “The Watermill Restaurant” could (on the bare facts before it) have been made by the claimant. However, as the claimant did not attend the tribunal, it was not able to consider this further. The claimant was warned in writing by the tribunal by a letter dated 31 July 2013 as follows:-

“It is for you to provide relevant information and documents to support your case. This can be supplemented by oral evidence at the hearing if you decide to attend. Please note that the tribunal hearing the case will have regard to the information before it at that time, and, in your absence the tribunal will not contact you for any additional information or documents that might become necessary.”

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

Chairman:

Date and place of hearing: 20 August 2013, Belfast.

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Shannon v Kilmore Quay Resort Ltd, t/a W... [2013] NIIT 00591_13IT (30 October 2013) URL: http://www.bailii.org/nie/cases/NIIT/2013/591_13IT.html Cite as: [2013] NIIT 591_13IT, [2013] NIIT 00591_13IT

Industrial Tribunals Northern Ireland Decisions