THE INDUSTRIAL TRIBUNALS

CASE REF:	  1985/13

CLAIMANT:		Loraine Tibah	

RESPONDENT:	Alex Robinson	

DECISION 

The claimant’s unfair dismissal claim is not well-founded and accordingly it is dismissed.

Constitution of Tribunal:

Employment Judge:	Employment Judge Buggy

Members:	Mr I O’Hea
	Mr P McKenna

Appearances:

The claimant was self-represented.

The respondent was not represented.

REASONS

1.	In these proceedings, the claimant complains of unfair dismissal.  Article 126 of the Employment Rights (Northern Ireland) Order 1996 (“ERO”) provides that an employee has the right not to be unfairly dismissed by her employer.  In the context of ERO, an “employee” is a person who works under a contract of service: see Article 3 of ERO.

2.	Accordingly, this claimant’s unfair dismissal claim must be dismissed unless we are satisfied, on the balance of probabilities, that she was employed by the respondent under a contract of service.  We are not so satisfied.  Accordingly, for that reason, the claimant’s claim fails.

3.	The claimant is married to the respondent.  They are estranged.  That is an important part of the background to these proceedings.  

4.	The claimant worked in the respondent’s restaurant, The Allotment Bistro, in Belfast, on a regular basis, from the first half of 2011 until late August 2013.  According to the claimant, throughout that period, she worked as the respondent’s “employee” (in the sense in which the term “employee” is used in Article 3 of ERO).  According to the respondent, the work which the claimant did in the restaurant was done in her capacity as his wife (as distinct from being done under a contract of service).

5.	The respondent put in a response to these proceedings.  At one point during these proceedings, he was represented by solicitors.  He is now self-represented.  He has chosen not to be present or represented during the main hearing of these proceedings.

6.	In our view, it is clear law that a tribunal may be entitled to draw adverse inferences from the omission of a respondent to give evidence at a main hearing, if he might have been expected to have material evidence to give on an issue in the case.  If a tribunal is willing to draw such inferences, those inferences may go to strengthen the evidence adduced on that issue by the claimant.

7.	If the reason for a respondent’s absence or silence satisfies a tribunal, then no such adverse inferences may be drawn; and if some credible explanation has been given for such silence (even if that explanation is not wholly satisfactory), the potentially detrimental effect of the respondent’s absence or silence may be reduced or modified.

8.	In the present case, we have concluded, in favour of the claimant, that the respondent’s failure to give evidence as a witness is one in respect of which no credible or satisfactory explanation has been given.  Accordingly, we do draw adverse inferences from his silence.  Those inferences strengthen the evidence which has been adduced in this case by the claimant.

9.	Having taken account of the implications of the silence of the respondent, we have nevertheless rejected the claimant’s assertions on the “employment” issue, because we consider her testimony on that issue to be unreliable.  

10.	The evidence in relation to the claimant’s employment status consisted entirely of her own oral testimony.  Accordingly, her credibility as a witness was of very substantial importance.  We did not find her to be a credible witness.  

11.	Incidentally, it does not necessarily follow that we have therefore concluded that the claimant was deliberately telling lies.  (It is unnecessary, for the purpose of determining these proceedings, for us to arrive at firm conclusions on the question of whether the claimant was lying, or was telling the truth as she saw it.  Furthermore, we fully accept that, throughout these tribunal proceedings, the claimant has been greatly stressed by the unpleasant relationship-breakdown context).  

12.	For the purpose of determining the issues in the present proceedings, it is sufficient for us to conclude, as we do conclude, that the claimant’s testimony was unreliable. 

13.	According to the claimant, she was the respondent’s employee, throughout the period when she was working in the restaurant.  According to the respondent, throughout that period, she was working there in her capacity as his wife, and not as a person who was carrying out her part of the bargain under a contract of service.

14.	The onus of proof is on the claimant to establish all the constituent elements of the claim of unfair dismissal.  That claim cannot succeed unless she was working under a contract of service at the time of the purported dismissal, and unless she had been working continuously under a contract of service throughout a period of at least the twelve months prior to the date of dismissal.

15.	In assessing the credibility of the claimant’s testimony, we took account of her demeanour and manner of giving evidence and, in particular, we also took account of the following.

16.	She was represented by a solicitor at the time she completed her tribunal claim form in these proceedings.  In that claim form, she stated that her employment had begun in February 2011.  However, during her oral testimony in these proceedings, she stated that her employment had only begun in May 2011.   (During her oral testimony, she stated that she had worked at the restaurant intermittently during the period from February 2011 until May 2011).

17.	In her claim form, she stated that her pay before tax was paid at the rate of £6.50 per hour and that her normal take-home pay was also paid at the rate of £6.50 per hour.

18.	During the course of a Case Management Discussion (“CMD”) in March 2014, the claimant confirmed that her salary was as set out in her claim form.  Nevertheless, during the course of her oral testimony during this main hearing, the claimant asserted, for the first time, that the respondent had agreed to pay her a gross salary of £9 per hour.  She gave no credible explanation for the discrepancy between the gross hourly amount specified in the claim form, which was subsequently confirmed during the March CMD, and the gross hourly amount now being specified by her.  

19.	During the course of her oral testimony during the main hearing, the claimant told us that she had been estranged from her husband throughout the period since March 2011.  If a woman works for her husband, it is somewhat more likely that she does so pursuant to a contract of service, as distinct from doing so merely because of their marital relationship, if the couple are estranged throughout the relevant period (as distinct from living together as husband and wife throughout that period).  Accordingly, that allegation, regarding the beginning of the estrangement, had some limited significance in relation to the question of whether or not there had been a contract of service.

20.	Throughout the period from March 2011 until the date of the alleged dismissal, the claimant and the respondent continued to live together in the same house.  According to the claimant, those living arrangements were necessitated because of the respondent’s allegedly precarious financial position at that time; and (despite those living arrangements), the estrangement was nevertheless final, and real, and continuous, from March 2011 onwards.

21.	We offered the claimant the opportunity of obtaining corroborative evidence in relation to the issue regarding the commencement of the period of estrangement.  In response to that invitation, she did produce a witness, who we will call Ms A.  Because of that witness’s connections with the claimant, one would expect Ms A to have been in a good position to know when the period of estrangement began.   Ms A’s sworn oral testimony was that she was under the impression that the marriage only broke down in the spring of 2013 (although she was aware that there had been difficulties between the couple in 2011).

22.	We also invited the claimant to obtain some corroborative evidence in relation to her allegation that her gross salary was £9 per hour.  She said there was no documentary corroboration.  She said nobody except herself and the respondent knew that it had been agreed that her gross salary would be paid at the rate of £9 per hour.

23.	Throughout the period during which the claimant was working in the restaurant, no tax deductions were paid over to HMRC.  The claimant told us that she didn’t know, at the time, that tax was not being paid to HMRC.  We find it very surprising that she made no enquiries with HMRC, at any time during the relevant period, in light of the following circumstances.  She was being paid in cash.  She received no P60s.  She didn’t get any payslips.

Employment Judge:       

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

Date decision recorded in register and issued to parties: