THE INDUSTRIAL TRIBUNALS

CASE REFS:   2525/14
82/15

CLAIMANT:			Mairead Scott

RESPONDENT:		Grafton Recruitment Ltd t/a Grafton Recruitment

DECISION
The unanimous decision of the tribunal is that:-

	(1)	The claim of constructive unfair dismissal is dismissed.

(2)	The claim of breach of contract and/or unlawful victimisation in respect of the deduction of maternity pay from the claimant’s final pay is dismissed.

(3)	The claim under Regulation 18 of the Maternity and Parental Leave etc Regulations (Northern Ireland) 1999 is dismissed.

(4)	The claimant was subjected to an unlawful detriment for the purposes of Article 70C of the Employment Rights (Northern Ireland) Order 1996 and suffered unlawful maternity discrimination, contrary to Article 5A(1) of the Sex Discrimination (Northern Ireland) Order 1976, in that:-

(i)	the respondent originally altered her post without consulting her while she was on maternity leave and without taking her position into account;

(ii)	the respondent altered the bonus scheme (albeit to her benefit) while she was on maternity leave without giving her an opportunity, given to other managers, to discuss same and without taking her position into account;

(iii)	the respondent appointed another manager to a peer position at a higher salary without considering the claimant’s pay position and without correcting pay inequality until she complained; and

(iv)	the respondent failed to properly communicate with the claimant during her period of maternity leave and did not take her position, or indeed her views as a senior employee, into account during a period of organisational change.  She was essentially forgotten about until she complained.

(5)	The claimant is awarded £7,500.00 plus £657.53 interest in respect of injury to feelings.  There was no financial loss.

Constitution of Tribunal:
Vice President:		Mr N Kelly
Members:			Ms M Mulligan
				Mr J Barbour

Appearances:
The claimant was represented by Mr T Warnock, Barrister-at-Law, instructed by Worthingtons, Solicitors.
The respondent was represented by Mr P Bloch, of the Engineering Employers’ Federation Northern Ireland

Overview

1.	The respondent is a recruitment agency which operates in Northern Ireland and places both permanent and temporary staff with various employers.  The respondent’s previous Chief Executive Officer and Northern Ireland Regional Director had left the organisation at the end of 2013.  A period of organisational change then followed.  A new CEO, Mr Brian Harvey was appointed in 2014.  A new Head of Human Resources, Mr Pete Feldman, was appointed on 9 June 2014.

2.	The claimant was an Area Sales Manager for the Greater Belfast area before she went on maternity leave on 14 January 2014.  She was paid Statutory Maternity Pay to 17 October 2014 and intended to use 10 (working) days annual leave immediately thereafter, taking her up to 31 October 2015.  During her period of maternity leave, the respondent company appointed a Ms Michelle Kearns to a senior role in the company.  The claimant felt that this appointment adversely affected her position.  She lodged a grievance on 25 September 2014, which was unsuccessful.  She did not appeal that grievance decision.  She resigned her employment on 27 October 2014, without returning to work, but after the conclusion of maternity leave.  There was then a deduction from her final pay of £3,450.05 in respect of a contractual requirement to repay 50% of occupational maternity pay if there was a resignation within three months of the employee’s return from maternity leave.

3.	The claimant alleges that she was constructively and unfairly dismissed.  She further alleges that she was discriminated against on the grounds of gender/ maternity in respect of:-

		(i)	The appointment of Ms Kearns.

		(ii)	Lack of communication during maternity leave.

(iii)	The response to her grievance.

		(iv)	The revision of the bonus scheme.

(v)	Her duties on return from maternity leave.

		(vi)	The deduction of £3,450.05 from her final pay.

	The claimant also alleged that there had been a breach of contract and unlawful victimisation in respect of the deduction from her final pay.

4.	Neither party emerged from this saga with any glory.  In the context of organisational and personnel changes, the respondent transferred part of the claimant’s work to a new appointee.  It then created confusion and suspicion by creating and discussing poorly articulated plans and by using job titles which they then argued were misleading. It had made the position worse by not taking the obvious precaution of communicating directly with the claimant while she was on maternity leave.  The claimant, for her part, overreacted and wrongly took the view that she was going to (ultimately) be adversely affected by the new peer appointment and by a new bonus scheme.  In a situation of some confusion, where witnesses were putting forward their own recollections of unminuted and informal discussions which had been conducted in a heated atmosphere, the claimant took the view that members of the respondent’s management had lied in response to her grievance and she resigned from her employment.  At that stage, the claimant had received a substantial pay increase removing pay disparity; the bonus scheme had been explained to her and was not detrimental; the claimant’s status had, if anything, been enhanced and only a minimal part of her responsibilities had been transferred.

5.	The unanimous view of the tribunal, after hearing and indeed re-hearing (on digital recording) the evidence, is that the respondent initially did not properly inform or consult with the claimant in relation to restructuring and pending organisational changes while she had been on maternity leave.  The respondent, following a complaint from the claimant, then did its best to correct the position.  Her salary was aligned with that for the new peer appointment, the bonus scheme was properly explained to her and it is clear that it would have involved no financial loss.  The duties of her post were clarified, with the result that her new post would have differed from her former post only to a minimal extent.  Her status within the organisational structure had, if anything, increased.

	Nevertheless the claimant, after participating fully in the first stage of the grievance procedure, resigned with no real justification, simply because the recorded recollection of the respondent’s witnesses in relation to certain discussions did not fully accord with her recollection.  

6.	It is completely regrettable that the matters have come to this stage.  It is clear that the respondent had wished to retain the claimant, at an increased salary, with a better bonus scheme and with responsibilities which ultimately (albeit not originally) would have been almost identical to her original responsibilities and with at least the same status.  

The hearing

7.	The witness statement procedure was used.  The tribunal had read the witness statements in advance of the hearing.  The witnesses swore or affirmed to tell the truth and adopted their previously exchanged witness statements as their         evidence-in-chief.  Other than where brief additional oral evidence-in-chief was required by way of clarification, the witnesses moved immediately to                           cross-examination and re-examination.  

8.	The claimant gave evidence on her own behalf and did not call any other witness.

Three witnesses gave evidence for the respondent, Ms Cara Woods who conducted the grievance investigation, Mr Pete Feldman, the Head of Human Resources, and Ms Sinead Wallace who was the Commercial Director and the claimant’s line manager.

9.	The tribunal heard evidence on 13, 14 and up to 1.30 pm on 15 May 2015.  At the conclusion of evidence, the parties were directed to exchange full written submissions by 8 June 2015.  Final submissions were to be lodged by 12 June 2015.

10.	The matter was listed for 19 June 2015 for a submissions hearing and panel meeting or a panel meeting.  The parties later confirmed that a submissions hearing was not required and a panel meeting proceeded on 19 June 2014 and, unusually, on a second day on 2 July 2015.  

Relevant law

Constructive unfair dismissal

11.	To establish that he has been constructively dismissed, an employee must show that his employer had committed a serious and repudiatory breach of contract, that the employee had left because of that breach and that he had not accepted and had not waived that breach.  

	A relevant serious breach of contract can include not just the breach of a specific or written contractual term but a serious breach of the implied term of trust and confidence.  Such a breach of the implied term would occur if an employer had acted in a manner which was calculated or was likely to destroy or seriously damage the relationship of trust and confidence.  

	In Brown  v  Merchant Ferries Ltd [1998] IRLR 682, the Northern Ireland Court of Appeal said that although the correct approach in constructive dismissal cases was to ask whether the employer had been in breach of contract and not to ask whether the employer had simply acted unreasonably; if the employer’s conduct is seriously unreasonable, that may provide sufficient evidence that there has been a breach of contract.  

	To ground a successful claim, a constructive dismissal must, of course, also be unfair.  

Unfair dismissal

12.	Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-

“130-(1)	In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a)	the reason (or if more than one, the principal reason) for the dismissal and

(b)	that is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

			    (2)		a reason falls within this paragraph if it – 

						(b)	relates to the conduct of the employee, 

(4)	where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – 

(a)	depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

(b)	shall be determined in accordance with equity and the substantial merits of the case.”

Maternity Leave Regulations

13.	Article 18 of the Maternity and Parental Leave Regulations (Northern Ireland) 1999 provides that an employee is entitled to ‘return from leave to the job in which she was employed before her absence”.  

	That ‘right to return’ is further defined in Regulation 18(5).  That paragraph requires:-

“(i)	terms and conditions of service relating to remuneration that are ‘not less favourable’; 

(Not that they are totally unchanged)

 (ii)	with her seniority, pension rights and similar rights as they would have been; and

 (iii)	otherwise on terms and conditions of service not less favourable than they would have been had she not been absent at the end of ordinary maternity leave.”

			(Again, not that they remained totally unchanged)

14.	‘Job’ is defined as:-

“the nature of the work which she is employed to do in accordance with her contract and the capacity and place in which she is so employed.”

		(Again, not requiring that the job be identical in each and every respect)

15.	If it is not reasonably practicable for the employer to permit her to return to that job, the employer must permit her return to another job which is both suitable for her and appropriate for her in the circumstances.

16.	Article 70C of the Employment Rights (Northern Ireland) Order 1996 provides for the right of an employee not to be subjected to unlawful detriment while on maternity leave.

Unlawful discrimination

17.	In relation to the claimant’s claim of sex discrimination, protection against discrimination on grounds of pregnancy or maternity leave is contained in Article 5A of the Sex Discrimination (Northern Ireland) Order 1976 as amended (‘the 1976 Order’).  This provides as follows:-

	“5A(1)	In any circumstances relevant for the purposes of a provision to which this paragraph applies, a person discriminates against a woman if –

	(a)	at a time in a protected period, and on the grounds of the woman’s pregnancy, the person treats her less favourably that he would have treated her had she not become pregnant; or

	(b)	on the ground that the woman is exercising or seeking to exercise, or has exercised or sought to exercise, a statutory right to maternity leave, the person treats her less favourably than he would treat her if she was neither exercising nor seeking to exercise, and have neither exercised nor sought to exercise, such a right ...

		(3)		For the purposes of paragraph (1) –

	(a)	in relation to a woman, the protected period begins each time she becomes pregnant, and the protected period associated with any particular pregnancy of hers ends in accordance with the following rules ...

	(iii)	if she is not entitled to ordinary maternity leave in respect of the pregnancy, the protected period ends at the end of the two weeks beginning with the end of the pregnancy;”

18.	It has long been established, since the decisions of the European Court of Justice in Dekker and Herz that discrimination on grounds of pregnancy must be sex discrimination, on the basis that only a woman can be pregnant.

19.	Article 63A of the 1976 Order (as amended) sets out the legislation in relation to the burden of proof in sex discrimination cases.  It provides as follows:-

	“63A (1) 	This Article applies to any complaint presented under Article 63 to an Industrial Tribunal.

	(2)	where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent –

			(a)	has committed an act of discrimination against the complainant which is unlawful by virtue of Part III, or

			(b)	is by virtue of Articles 42 or 43 to be treated as having committed such an act of discrimination against the complainant,

		the tribunal should uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed, that act”.

20.	Other then circumstances in which the impugned actions are inherently discriminatory such as the different rules in relation to gender in James  v  Eastleigh Borough Council [1990] IRLR 572, the issue of the respondent’s motivation, whether conscious or subconscious, is material.

21.	The facts in Johal  v  Commission for Equality and Human Rights [2010] UKEAT/0541/09 are in some ways analogous to the present case.  The claimant was going on maternity leave.  She asked to be ‘kept in the loop with regards to vacancies and training packages while I’m away’.  The respondent assured her that it would keep her ‘inside the loop of developments and job vacancies’.  This did not happen.  The claimant complained of sex/maternity discrimination.  

	The significant factual difference between Johal and the present case is that the former case concerned a real promotion opportunity which should have been notified to the claimant.  In the present case, there was no promotion opportunity or competition.  There was instead the creation of a new post at her level of management which had been filled by ‘headhunting’ a suitable candidate.  The claimant argued that all permanent recruitment had initially been removed from her and given to Ms Kearns.  On the claimant’s argument, that had only changed following her complaints but, even then, a small part of her original duties, the recruitment of higher paid administrative staff, still passed to Ms Kearns.  The respondent argued that it had always been intended to create a post for Ms Kearns to head a specialist team and that it had never been intended to alter the claimant’s duties other than to a minimal extent. 

22.	The EAT in Johal considered the issue of causation in maternity discrimination.  The ET had considered whether the claimant’s maternity leave had been the “predominant and effective cause” of the respondent’s failure to notify her of the promotion vacancy.  The EAT regarded that as the correct test.  It stated:-

		“Section 3A SDA is headed Discrimination on the Grounds of Pregnancy or Maternity leave.  A person discriminates against a woman if, on the ground that the woman is, here, exercising a statutory right to maternity leave, the person treats her less favourably.”

	There has to be a real link, not an accidental one, between the maternity leave and the allegedly adverse treatment.  The EAT pointed out:-

		“The Regulation is designed to outlaw unfavourable treatment of women on maternity leave.”    
	
The tribunal held that the causative link between the detriment and maternity had not been made out.  The EAT concluded that the ET was entitled to reach that conclusion.

23.	The EAT in Johal referred to O’Neill  v  Governors of St Thomas Moore RCVA Upper School [1995] IRLR 372 which set out that the prohibited ground need not be the sole or main cause of the alleged detriment.

	It stated that the critical question in this type of case was ‘why was the claimant treated in the manner complained or?’.

	It concluded that, on the assumption that a prima facie case of discrimination had been made out (see Madarassy  v   Nomura International [2008] ICR 867), the respondent in that case had fulfilled its obligation to provide a non-discriminatory explanation.

	In Johal, that non-discriminatory explanation was simply an administrative error.

Shifting burden of proof 

24.	The proper approach for a tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof in relation to discrimination has been discussed several times in case law.  The Court of Appeal re-visited the issue in the case of Nelson  v  Newry & Mourne District Council [2009] NICA - 3 April 2009.  The court held:-

“22	This provision and its English analogue have been considered in a number of authorities.  The difficulties which tribunals appear to continue to have with applying the provision in individual cases indicates that the guidance provided by the authorities is not as clear as it might have been.  The Court of Appeal in Igen  v  Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a tribunal to go through a two-stage                        decision-making process.  The first stage requires the complainant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination.  Once the tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination.  In an annex to its judgment, the Court of Appeal modified the guidance in Barton  v  Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333.  It stated that in considering what inferences and conclusions can be drawn from the primary facts the tribunal must assume that there is no adequate explanation for those facts.  Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent.  To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex.  Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof.  In McDonagh  v  Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.

 23	In the post-Igen decision in Madarassy  v  Nomura International PLC [2007] IRLR 247 the Court of Appeal provided further clarification of the tribunal’s task in deciding whether the tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination.  While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen.  The court stated:-

‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment.  Those bare facts only indicate a possibility of discrimination.  They are not, without more, sufficient matter from which a tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; ‘could conclude’ in Section 63A(2) must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it.  This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent in contesting the complaint.  Subject only to the statutory ‘absence of an adequate explanation’ at this stage, the tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.’

That decision makes clear that the words ‘could conclude’ is not be read as equivalent to ‘might possibly conclude’.  The facts must lead to an inference of discrimination.  This approach bears out the wording of the Directive which refers to facts from which discrimination can be ‘presumed’.  

24	This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination.  In Curley  v  Chief Constable of the Police Service of Northern Ireland [2009] NICA 8, Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination.  The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A.  The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”

25.	In S Deman  v  Commission for Equality and Human Rights & Others [2010] EWCA Civ 1279, the Court of Appeal considered the shifting burden of proof  in a discrimination case.  It referred to Madarassy and the statement in that decision that a difference in status and a difference in treatment ‘without more’ was not sufficient to shift the burden of proof.  At Paragraph 19, Lord Justice Sedley stated:-

“We agree with both counsel that the ‘more’ which is needed to create a claim requiring an answer need not be a great deal.  In some instances it will be forwarded by a non-response, or an evasive or untruthful answer, to a statutory questionnaire.  In other instances it may be furnished by the context in which the act has allegedly occurred.”

26.	In Laing  v  Manchester City Council [2006] IRLR 748, the EAT considered a claim of race discrimination.  However, its remarks in that regard apply equally to a claim of gender/maternity discrimination.  It stated at Paragraphs 71 - 76:-

“(71)	There still seems to be much confusion created by the decision in Igen  v  Wong.  What must be borne in mind by a tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination.  The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the tribunal on the balance of probabilities that certain treatment had been by reason of race.

...

 (73)	No doubt in most cases it would be sensible for a tribunal to formally analyse a case by reference to the two stages.  But it is not obligatory on them formally to go through each step in each case.  As I said in Network Road Infrastructure  v  Griffiths-Henry, it may be legitimate to infer he may have been discriminated against on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected.  But at what stage does the inference of possible discrimination become justifiable?  There is no single answer and tribunals can waste much time and become embroiled in highly artificial distinctions if they always feel obliged to go through these two stages.

...

 (75)	The focus of the tribunal’s analysis must at all times be the question whether they can properly and fairly infer race discrimination.  If they are satisfied that the reason given by an employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is an end of the matter.  It is not improper for a tribunal to say, in effect, ‘there is a real question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he believed or he did and it has nothing to do with race’.

(76)	Whilst, as we have emphasised, it will usually be desirable for a tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so.  There is no purpose in compelling tribunals in every case to go through each stage.”

Relevant findings of fact

27.	The claimant worked for the respondent for approximately 13 years.  She had her first period of maternity leave in 2011.  The respondent company had also undergone an organisational change at that point when the claimant had been absent on her first maternity leave.  On that occasion, the claimant had been promoted during her absence of maternity leave and returned from that leave to her promoted post.  

28.	In the period leading up to her second period of maternity leave the claimant had been the Area Sales Manager (‘ASM’) for the Greater Belfast area.  There were two other ASMs in Northern Ireland; one based in Ballymena and one based in Enniskillen/Portadown.  Both were female.  The area covered by the claimant as ASM was the biggest of the three in terms of budget.  The claimant stated, firstly, in cross-examination that her budget was ‘slightly’ more than that of the other two ASMs and then appeared to accept that her budget was ‘significantly’ more than the other two ASMs.

29.	In the period leading up to her second period of maternity leave, the claimant had been responsible for general (administrative and contact centres) recruitment in her area; both temporary and permanent.  Large contracts (managed services programmes) were dealt with separately.  Specialist IT and technical recruitment were also dealt with separately.  

30.	A significant majority of the claimant’s role before the maternity leave involved temporary general recruitment.  The annual budget for temporary general recruitment was approximately £1.7 million. The target budget for permanent general recruitment was £500,000 but in the years leading up to the claimant’s second maternity leave the actual budget achieved in respect of permanent general recruitment was approximately £250,000 per annum.  The reality was that the proportion of the claimant’s responsibility which related to all permanent general recruitment was small; approximately 15%.  However, this proportion could not properly be regarded as minimal.

31.	Of that small proportion of her responsibilities comprising permanent general recruitment, a much smaller proportion related to ‘senior’ permanent general recruitment.  That proportion was never fixed in evidence before the tribunal but the claimant stated that she had handled “some” such appointments in the past.  It was however a very small part of her work.  ‘Senior’ permanent general recruitment, however defined, could properly be regarded as a minimal or insignificant part of the claimant’s responsibilities before maternity leave.

32.	In the collective experience of this tribunal, this case is almost unique in the number of issues on which the parties seemed to have entirely different views.  The manner in which ‘senior’ permanent general recruitment was to be distinguished from other, less senior, permanent general recruitment was one such issue.  

33.	The respondent stoutly maintained the line throughout the hearing that the accepted distinction was between relevant posts attracting a salary of over                     £30,000.00 per annum and those posts attracting a lesser salary.  The claimant stated in evidence that the use of a £30K per annum cut-off point to distinguish ‘senior’ permanent general recruitment from other permanent general recruitment was something which had only emerged in the outcome to the claimant’s grievance.  The claimant stated that it had not existed before.  The tribunal was not referred, by the respondent, to any documentary evidence of a pre-existing practice.  It also seems clear that before the claimant went on maternity leave she had been responsible for all permanent general recruitment, whether ‘senior’ or ‘junior’ in the Greater Belfast area.  She stated, in cross-examination, that she had dealt with some permanent general recruitment over £30K per annum before commencing maternity leave.  She was not contradicted.  The tribunal therefore concludes that before she went on maternity leave, the claimant had been responsible for all permanent general recruitment including ‘some’ ‘senior’ permanent general recruitment and that, at that point, there had been no generally accepted distinction between senior and non-senior recruitments.  Those recruitments attracting a salary of over £30,000.00 per annum ultimately passed to Ms Kearns.  As indicated above, that can only be regarded as a minimal proportion of her overall responsibilities.

34.	Immediately before the claimant commenced her second period of maternity leave, Ms Sinead Wallace who was at the next higher grade, Commercial Director, and who was based in Dublin, added Northern Ireland to her responsibilities.  At that point she became the claimant’s line manager.  She had a discussion with the claimant before she departed on maternity leave.  Like many other such discussions in this case, this was an informal discussion and was not minuted.  Inevitably each participant now had a different view of what had been said and what had been discussed.  The claimant felt that Ms Wallace had indicated that there could be a bigger role for her on her return from maternity leave and felt that there had been some discussion of a possible role as ‘Head of Northern Ireland’.  In contrast, Ms Wallace recalled that she had asked the claimant if she would be interested in an Northern Ireland regional role but recalled that the claimant had told her that she would not be interested because of her need to achieve work/life balance.  Ms Wallace also recalled that the claimant had indicated that she would have been interested a role as ‘Head of BCC‘.  These job titles appear to have had little precision and it is entirely unclear what job or jobs had been discussed and equally unclear that both participants had actually been discussing the same thing at the same time.  It is a feature of this case that posts, locations or work practices had several different overlapping and contemporaneous titles which served only to add confusion.  

35.	However, given the claimant’s previous experience of having been promoted while on her first period of maternity leave which had also coincided with a period of structural re-organisation, it seems probable that after some form of discussion between the claimant and Ms Wallace, including a discussion of the potential for career progression, the claimant was left with a distinct hope of advancement during her period of maternity leave.  She was no doubt disappointed when that advancement did not materialise and when in fact a further peer post was created at her level.  

36.	Before going on maternity leave, the claimant e-mailed Mr Brian Monroe, Chief Financial Officer, and Ms Wallace on 14 January 2014 to, inter alia, ask:-

“Please keep me informed of any changes/opportunities that may arise during my time off.”

	It is important to note that this e-mail referred not just to job opportunities but also to ‘changes’.  The claimant also indicated in this e-mail that her blackberry was turned off and that she was not going to review e-mails regularly.  She reminded Ms Wallace that Ms Wallace had her personal telephone number, ‘if you require anything urgent’.  

37.	It is not the case, as the claimant suggested in the course of the tribunal hearing, that Ms Wallace was therefore free to use the claimant’s personal telephone number at any time.  The invitation given by the claimant was specifically restricted to occasions when such use was required urgently.  There had been no general invitation to Ms Wallace to call the claimant by telephone at any time during her absence on maternity leave.  The tribunal accepts that employers have to be careful in this area to avoid unnecessary or inappropriate contact with staff who are absent on maternity leave.  There is a fine line to be drawn between appropriate contact and inappropriate contact during a period of maternity leave.  

38.	However, that said, there was nothing which would have prevented Ms Wallace or indeed anyone in the respondent organisation from keeping in regular touch with the claimant during her period of maternity leave by letter or e-mail.  While care has to be taken not to have inappropriate contact, employers cannot safely ignore the position of employees on maternity leave and the claimant in this case had specifically invited information.  

39.	The claimant does appear to overstate her level of detachment from the respondent organisation during her period of maternity leave.  She said, as indicated in her e-mail on 14 January 2014, that her blackberry had been turned off.  However, she clearly kept herself up-to-date to some extent during her period of maternity leave with news of the structural re-organisation in the respondent organisation.  At a meeting on 30 July 2014, the claimant stated:-

“Also keeping an eye on Good News Friday – so aware of both appointments.”

	The reference to ‘Good News Friday’ was to a weekly staff newsletter sent to all members of staff electronically and the reference to ‘both appointments’ was to the appointments of Mr Harvey as new Chief Executive Officer and to the appointment of Mr Feldman as new Human Resources Manager.  

40.	The claimant also sought to argue that her work blackberry was in some significant way restricted in the access it gave to e-mails and attachments.  It is clear that the blackberry did not give direct access to the respondent’s intranet.  There, therefore, was a difficulty in relation to the full details of the bonus scheme where the weekly newsletter had referred readers to the intranet for further details.  However, there was no general difficulty in access to e-mails and ordinary attachments.  It is also clear, that prompted by the new weekly newsletter, the claimant could have made enquiries in relation to the details that the bonus scheme contained on the intranet and could have specifically sought such details.  In any event, the blackberry provided by the respondent organisation was a smartphone designed for the business market and specifically designed for e-mail access.  It did not require any security codes to which the claimant did not have access.  The claimant’s own evidence was that she had not had a laptop for business use for some years and that she had used the blackberry exclusively for out-of-office access.  Given that it had been good enough for out-of-office access for some years of employment, the tribunal can only conclude that the blackberry was good enough for most                  out-of-office access during the claimant’s absence on maternity leave.  

41.	That said, while the claimant clearly overstated and exaggerated her level of detachment from the respondent organisation during maternity leave, it should not have been left up to the claimant to seek out relevant information.  The respondent organisation was under an obligation to keep the claimant properly informed of substantial changes to her post, remuneration and organisation.  It is clear that the request in the e-mail of 14 January 2014 from the claimant in which she asked to be kept informed personally of any changes/opportunities was not specifically acted on by Ms Wallace or indeed by anyone else in the respondent organisation.

42.	On 28 July 2014, some six months into her period of maternity leave, the claimant e-mailed Ms Wallace and Mr Harvey, the new Chief Executive Officer, to ask for a meeting to update her on changes in the business and to introduce herself.  It is clear that the claimant had, at this stage, been keeping up-to-date with weekly newsletters and to an extent with e-mails.  She had obviously been aware to some extent of the organisational changes and the new appointments.  Nevertheless, it was the claimant who initiated this contact and who sought an update on changes in the business.  

43.	The reply from the respondent organisation came promptly the next day, ie 29 July 2014, setting up a meeting on 30 July 2014.  The reply ended:-

		“Looking forward to catching up.”

44.	The next day, Ms Wallace, Mr Harvey and Mr Feldman met the claimant in the building variously described as the Headquarters, Belfast Headquarters or, bizarrely, ‘The Boat’.  Ms Wallace, after making the necessary introductions left after a few minutes to meet Ms Michelle Kearns who had been appointed to what was regarded as a peer role to that occupied by the claimant.  Unfortunately, the claimant had just found out about the appointment of Ms Kearns in the course of a brief discussion with some of her staff.  The claimant was extremely annoyed at Ms Wallace leaving the meeting, particularly at the fact that she had left the meeting to meet with Ms Kearns.  In cross-examination the claimant stated:-

“Rather than leaving the meeting to spend time with the new permanent manager, it would have been pertinent and respectful to me to stay.”

45.	Before Ms Wallace had left to speak to Ms Kearns, she had made arrangements with the claimant to meet the claimant again, as soon as she had finished her meeting with Mr Harvey and Mr Feldman, for further detailed discussions.  Given that arrangement and given the context of the meeting, it is difficult to see why the claimant took such a degree of offence at Ms Wallace leaving.  However, it seems clear that the claimant had been upset by just finding out about the appointment of Ms Kearns who the claimant described as the new ‘permanent manager’ (this job title applies to a grade lower than either the claimant or Ms Kearns and is yet another example of a careless and lax approach to the use of job titles which infects this case) and by being told that Ms Kearns was earning a considerably higher salary than she was.  

46.	The meeting appears to have deteriorated at that point.  Mr Feldman, in particular, in his cross-examination indicated that there had been little ‘adult discussion’ and that he had been caught by surprise and ‘blindsided’ by the claimant’s aggressive attitude.  He argued that there had been no prior notice of any complaints and that no agenda had been agreed.  He had been approaching this meeting as an opportunity simply for an introduction.  While Mr Feldman did not see the claimant’s e-mail in advance, it is perfectly clear that Mr Harvey and Ms Wallace had seen the e-mail in advance and had known that the claimant was not seeking simply a straightforward introduction but was also seeking an update in relation to changes in the office.  Again it has to be stressed that it was not properly up the claimant to seek out such information whilst she was on a period of maternity leave.  She should have been kept informed.  

47.	Given Mr Feldman’s description of this meeting on 30 July 2014 and, in particular, his description of the claimant’s attitude during this meeting, it is difficult to understand why the appointment of Ms Kearns and its impact on the continuing appointment of the claimant was dealt with in the vague and casual manner it apparently was dealt with in the course of this meeting.  Mr Feldman accepted that throughout this meeting, Ms Kearns was consistently referred to as the Head of Permanent (Recruitment) and that the claimant was consistently described as Head of Temporary (Recruitment).  He also accepted that there been no discussion throughout that meeting of the claimant retaining any responsibility for any permanent recruitment.  Mr Feldman again candidly accepted, in                            cross-examination, that he could understand why, in retrospect, the claimant had become so upset and concerned.  

48.	It has to be remembered that at this point the claimant was still on maternity leave; that she had heard about organisational changes; that she had sought an update; that she had met senior members of management; and that she had been told by those senior members of management that her new post was as Head of Temporary (Recruitment) and that a new appointee was the Head of Permanent (Recruitment).  On that basis, the claimant was going to lose some 15% of her work.  She had just been told that the new appointee was being paid                £55,000.00 per annum basic as opposed to her £45,000.00 per annum basic.  While those figures were incorrect, in that the new appointee was being paid £50,000.00 per annum basic rather than £55,000.00 per annum basic, it remained the case that the new appointee was being paid a considerably higher salary than the claimant and that the claimant’s salary had not yet been considered.  There had been no consideration of pay alignment at that point.  

49.	The claimant made it perfectly plain to Mr Feldman and indeed to Mr Harvey that she felt she had been demoted by Ms Kearns’ appointment.  If the respondent were correct that it had always been intended to leave almost all permanent general recruitment with the claimant, it is again surprising that even at this late stage the opportunity was not taken by Mr Feldman and Mr Harvey to clarify issues for the claimant rather than leaving her confused; particularly in the context of a heated meeting.  

50.	The claimant produced documents which she stated were written notes of what had been said and what had been discussed during the course of this meeting.  She stated that she had completed some of these notes during the meeting and some shortly after the meeting.  Mr Feldman did not directly and in detail address the accuracy of these notes in the course of his witness statement, which is in itself surprising.  He simply said ‘no notes were taken at the meeting by either party so nothing can be relied on as verbatim’.  When he was asked, in cross-examination, to confirm that the notes were accurate, he had apparently not read those notes in advance of the hearing.  The panel rose for 10 minutes to allow him to read through those notes and to point to any specific statements with which he disagreed.  The tribunal would have expected Mr Feldman to have read these notes in advance of the hearing and if he did disagree with any part of those notes to have addressed that in detail both in his statement and to have been ready to address that disagreement in the course of his cross-examination.  After the break in                    cross-examination, he disagreed with various points in the notes.  He disagreed, in particular, with a reference at Page 136 of the bundle in which the claimant recorded Mr Feldman as saying:-

“I agree, that wasn’t handled very well and can see now that you are annoyed.  I’m new to the role and when I was recruiting for the perm manager, I did not know who you were or how this would impact on your role.”

51.	Mr Feldman argued that he had not said anything after the word ‘annoyed’.  He said this for the first time in his cross-examination and after having been given the opportunity to read the notes.  The tribunal does not accept that this is an accurate recollection of events.  In the first place, Mr Feldman had been newly appointed at the time of the meeting.  He had been in post for six – seven weeks.  He stated in cross-examination that before going into this meeting on 30 July 2014, but not before, he had been given a very quick overview of the business unit and of the division between permanent and temporary recruitment.  He accepted that this had not happened at all before the appointment of Ms Kearns which had occurred some weeks earlier.  That was an appointment in which he had been involved together with Mr Harvey and Ms Wallace.  When he was asked in cross-examination whether Ms Kearns had been appointed as Head of Permanent Recruitment (NI), he stated:-

		“Initially that was the title.”

When it was put to him that Ms Kearns had been referred to as Head of Permanent (Recruitment) in the course of the meeting, on 30 July 2014 he was slightly evasive, saying:-

	“Yes I believe so.”

When it was put to him again in cross-examination, that he did not consider the claimant when appointing Ms Kearns, Mr Feldman stated that any changes had not impacted on the claimant and therefore he had not applied his mind to her.  The obvious point is that if Mr Feldman had not applied his mind to the claimant, it is difficult to see how he could have concluded that any changes would not have impacted on her.  When asked again whether he had carried out a review of the claimant’s role before the appointment of Ms Kearns to see how that appointment impacted, if at all, on the claimant, he replied:-

	“No.”

52.	The words recorded at Page 136 of the bundle, seems therefore to accord entirely with Mr Feldman’s subsequent remarks on cross-examination and it seems to the tribunal much more likely than not that he had indeed said what the claimant alleged he had said and that her notes are accurate.  Ms Kearns had been appointed as Head of Permanent Recruitment, he had not at that time considered the claimant and he had not considered whether or to what extent the new appointment would have impacted on the claimant.  

53.	Mr Feldman, Ms Wallace and indeed Ms Woods argued that the intention all along had been to appoint a Head of Specialist Recruitment NI and that there had been no intention to alter the claimant’s earlier role.  If it had indeed been the intention of the respondent organisation, in a clearly thought through proposal, to appoint a new Head of Specialist Recruitment NI, that is the title that it would have used.  It is beyond puzzling that the respondent organisation have not been able to point to any job description or contractual documentation relating to the appointment of Ms Kearns which might have more properly defined her role and, in particular, might have defined her role in relation to any impact it might have had upon the claimant.  It is also of note that Ms Kearns in her Linkedin profile described herself as ‘Head of Permanent Recruitment NI’.  She would not have done that if her initial role had been focused on specialist recruitment.

54.	Furthermore, Ms Wallace in the course of her cross-examination had been asked to confirm whether or not:-

“It was known that Ms Kearns was appointed to deal with permanent employment?”

	Her unequivocal answer was:-

		“Yes.”

In addition, the claimant had also been described as Head of Temporary Recruitment in documentation relating to a job interview in which she participated in the course of her maternity leave.  

55.	Mr Feldman, in particular, sought to explain all of this by arguing that titles had been used ‘loosely’.  Given that this use continued in a meeting during which he said the claimant was being aggressive, where he had been ‘blindsided’, and where he had been caught by surprise by complaints, it was, to say the least, surprising that such ‘looseness’ in the use of titles and job descriptions was adopted and then continued by the respondent.  The tribunal would have thought that this meeting, above all times, was the time for precision and for a clear explanation.  

56.	It therefore seems much more likely than not that the original intention of the respondent organisation was as indicated by the use of titles and by the discussion on 30 July 2014, ie that the original intention had been to create a new Head of Permanent Recruitment (NI), encompassing both general and specialist recruitment, and a new Head of Temporary Recruitment (NI) who would both report direct to the Board.  It is perhaps typical of this case that further imprecision entered on occasion into the use of job titles and that on certain occasions ‘Belfast’ was substituted for ‘Northern Ireland’.  However, given the fact that the two new posts, that held by the claimant and that held by Ms Kearns, were to deal direct with the Board it seems much more likely than not that they were intended to be responsible for Northern Ireland as a whole.  If they were not, they were at least intended to cover Greater Belfast.

57.	Two further issues were discussed in the course of this meeting on 30 July 2014.  The first was the new bonus scheme and the second was the pay differential raised by the claimant in relation to Ms Kearns.  

58.	The respondent company had revised the bonus structure of the organisation as part of its re-organisation exercise.  There had previously been some 70 different such schemes within a relatively small organisation.  In such circumstances, there can be no rational argument against such a re-organisation or against an attempt to introduce a uniform bonus scheme.  

59.	During the meeting on 30 July 2014, the claimant objected strongly to the new scheme and felt that she would have lost out under that scheme.  She also objected to the respondent company’s failure to actively consult her while she was on maternity leave.  She maintained that position at the tribunal.  Having listened to the detailed evidence of both parties and to that of Mr Feldman in particular, the tribunal is satisfied that the claimant would not have lost out financially under the new bonus scheme but is also satisfied that the respondent failed to consult with the claimant, or even to keep her informed in relation to the new bonus scheme, while she was on maternity leave.  

60.	The most important feature of the new scheme, insofar as it effected the claimant, increased a percentage bonus from 2% to 2.5% of Branch Operating Profit (‘BOP'), if the claimant exceeded a previously set target of 90%.  That was a significant change in the claimant’s favour increasing the basic level of bonus by 25%.  

61.	Looking at the new scheme as a whole, it comprised three elements:-

		(i)	The on-target element.

		(ii)	The above-target element.

		(iii)	The key performance indicators element.

62.	In relation to the first element (the on-target element), if the claimant, or any other manager, achieved 90% of the BOP, she would receive 2.5% (rather than 2% as previously) of the BOP on a quarterly basis.  

63.	In relation to the second element (the above-target element), if the claimant, or any other manager, who exceeded 100% of BOP, they would receive a percentage of that excess.  Under the old scheme, the claimant would have got nothing unless she had achieved at least 110% of BOP.  Under the old scheme, if the claimant had achieved 101% or anything up to 109.9%, she would have achieved nothing further under the bonus scheme.  Under the new scheme, the claimant would in such circumstances receive an additional bonus.  

64.	The first two elements of the new bonus scheme were therefore changed significantly in the claimant’s favour.

65.	The third element (the key performance indicators element) related to two separate areas; firstly, quality compliance, eg ISO accreditation, compliance with agency regulations, etc and, secondly, performance management compliance.  

	The claimant and any other manager was obliged to meet targets of 80% compliance in both areas.  If the 80% target in only one area was missed by the claimant or by any other manager, there would be no effect, either positive or negative, on bonuses.  However, if the 80% targets in both areas were missed by the claimant or by any other manager, there would be a reduction of 10% in bonuses achieved under the first two elements.  

66.	The new bonus scheme is therefore reasonably byzantine in its complexity and if it was in effect a clarification of the 70 previous schemes, the tribunal is grateful that it does not need to spend any time studying those previous schemes. 

67.	However, as far as the bottom line is concerned, the basic quarterly bonus increased by 25% from 2% to 2.5%.  The scope for potential benefit for above BOP earnings increased in that the target of 110% no longer had to be met and that 101% would suffice.  Against potential increases in bonus of 25% plus, the worse that could happen to the claimant, if her performance was really poor in terms of compliance issues, which itself seems unlikely given her work record, was that there would be a decrease of 10% in the bonus which had already increased by at least 25%.  

68.	The claimant’s primary cause for concern in relation to potential bonus earnings was that bonuses under the new scheme were to be calculated quarterly rather than monthly.  She maintained the view in cross-examination that this had to be to her detriment because she would forfeit the possibility of benefits from a sharp increase in sales in an individual month which was then followed by one or two poor months, all in the one quarter.  Given that her own evidence was that she had received bonuses for 11 out of the last 12 earning months, it is difficult to see the basis for such concern.

69.	Furthermore, when it was put to the claimant that assessing bonuses on a quarterly basis could equally work to her benefit by allowing any individual poorly performing months to be smoothed out, by one or two better performing months, she resolutely refused to accept the point.

	Her concerns in regard to the quarterly assessment of bonuses appear to be exaggerated and without merit.

70.	It is also of concern that the claimant maintained in cross-examination that she had objected to the quarterly basis for bonuses and had ‘challenged Pete (Feldman)’.  However, her statement, which she had earlier adopted on oath, recorded, “while I did not mind the change to quarterly payments”.  The claimant accepted that she had given different evidence in cross-examination to that contained in her sworn witness statement, which represented her evidence-in-chief.

	This was not the only instance when the evidence of the claimant was shown to be inaccurate and confused.  At an earlier point in her cross-examination, the claimant was arguing that the ‘Head of’ title would be regarded as a demotion.  She stated that Mrs McMaw had had the title of ‘Head of Permanent Recruitment’ before she resigned.  When challenged, the claimant accepted that that had not been the case and that Mrs McMaw had been a ‘manager’. 

	When seeking to compare her treatment in relation to other ASMs who had been consulted, she said that her budget was ‘slightly’ more than theirs and therefore there was no real distinction.  She then admitted her budget had been significantly more than theirs.

	The claimant’s evidence, as with the evidence of the respondent, was confused.  Again, given the background of a heated disagreement, entrenched positions, poor communication, badly articulated and undocumented plans, ad hoc developments and unminuted meetings, that is perhaps not surprising.

71.	The new bonus scheme, insofar as it concerned the claimant, amounted to a            win-win situation.  If bonuses were to be awarded there would be an increase of at least 25% with the possibility and no more than the possibility, that such increased bonuses would then be decreased by 10%.  

	The claimant appears to have totally misunderstood the position.  She still regards the terms of the new bonus scheme as being to her detriment.  This is despite the fact that the bonus scheme had been explained to her in detail by Mr Feldman and despite the fact that documentation in relation to the bonus scheme had been made available to her.

72.	Given the lack of any financial detriment, the tribunal does not feel that the failure of the respondent to actively consult her was as significant as it might have been.  That said, it would have been better if the claimant had been positively notified of the pending changes to the bonus scheme and if she had been invited to take part in the discussion of the proposals, even if those proposals could only have been to her benefit.  It seems clear that all other managers were invited to take part in a telephone conference to discuss the proposed changes.  The claimant believes that she was not invited to take part.  Despite initial assertions in cross-examination that the claimant had been invited to take part, the respondent was unable to locate the relevant e-mails which would have been weeded by the time of the tribunal hearing.  However it is of significance that the grievance decision in October 2014 does not refer to any such invitation to the teleconference.  If it had existed, or even if it might have existed, the respondent would have referred to any such invitation at that point.  The grievance findings simply recorded that there was no conscious decision to exclude the claimant and that news had been disseminated through the weekly newsletter and ‘conference calls with Sales Managers’.  Mr Feldman also accepted in cross-examination that he could not positively say that the claimant had been invited to the teleconference.  On the balance of probabilities therefore, the tribunal concludes that the claimant had not been directly invited to take part in the conference call to discuss the new bonus scheme.   

73.	It is therefore a matter of some concern that the claimant’s failure to take part in that conference call while on maternity leave was not noticed by her line manager. Ms Wallace.

	Furthermore, the reference in the weekly newsletter to the new bonus scheme referred the reader to the company intranet for details.  Ms Wallace accepted that the intranet was not accessible by Blackberry.  It would have required a laptop and a current hot pin code.  Ms Wallace appeared to accept that a hot pin code had not been provided to the claimant while on maternity leave, but asserted that the claimant had a company laptop during her maternity leave.  The claimant stated that she had not had a laptop for two years.  In the absence of any proof from the respondent, the tribunal accepts that the claimant had neither a laptop or indeed a hot pin code which had applied only to the laptop.  The claimant would therefore not have had access to the full details of the bonus scheme until the meeting on 30 July.  That was a significant failure on the part of the respondent and illustrates that the claimant had been effectively forgotten about and ignored during her maternity leave.

74.	The claimant further queried her pay and the pay awarded to Ms Kearns.  She argued on 30 July 2014 that their pay should be aligned.  At that point, she believed wrongly that Ms Kearns was being paid £55,000 per annum rather than the £45,000 per annum paid to the claimant before her period of maternity leave.  This illustrates the perils of office gossip but it remains the case that Ms Kearns was being paid more than the claimant and that, until she raised this point, the claimant’s position was not even considered.  The claimant was told by Mr Feldman that he would take this up with Mr Harvey, who had left the meeting by that stage, but that he could not at that stage (30 July 2014) guarantee the outcome.  

75.	The claimant then met Ms Wallace immediately afterwards for the pre-arranged continuation of the meeting and she continued her complaints.  Ms Wallace then contacted Mr Harvey by telephone.  He indicated he had no problem with the claimant being paid the same as Ms Kearns upon her return from maternity leave.  That was communicated to the claimant by Ms Wallace in a phone call on 6 August 2014.  While it had yet to be formalised by the Board and could not therefore be guaranteed, the claimant had some reason from that point to hope it would in fact be done.  It was eventually formalised in late September 2014 and notified to the claimant in early October 2014.  She returned from her maternity leave on 17 October 2014 and commenced a period of annual leave before resigning.  

76.	The respondent’s witnesses sought to downplay the salary issue.  From their point of view, pay had been aligned on the claimant’s return from maternity leave.  No harm had been done.  However, that misses the point.  The respondent had appointed Ms Kearns to a peer appointment on a higher salary and it had not even considered pay alignment until that issue had been raised by the claimant on 30 July 2014.  Even though no financial loss occurred, the claimant was left nominally on a lower salary until October 2014 with no guarantee that her pay would be increased to match that of the new peer appointment.  That depended on the approval of the Board.  Mr Feldman accepted, in cross-examination, that he had told the claimant, as late as 26 August 2014, that he hoped the question of salary could be resolved.  He also accepted that even at that point in time, the claimant had no guarantee that it would be resolved, or resolved in her favour.

77.	It is clear that at the meeting on 30 July 2014, the claimant was left with a clear message that her new post on her return from maternity leave was to involve only temporary general recruitment.  Mr Feldman accepted in cross-examination that there had in fact been no discussion at that meeting of the claimant doing any permanent general recruitment at all.  He sought to excuse this by indicating that this had been a heated meeting with ‘little adult discussion’.  Even if that were entirely correct, the tribunal would have expected the respondent to have realised the seriousness of the situation at that point and, if it had indeed originally intended to leave the claimant with significant permanent recruitment responsibilities, it would have done so and it would have clarified the position at that stage.  In any event, the removal of all permanent general recruitment represented a significant change in the claimant’s responsibilities.  No one from the respondent had bothered to keep the claimant informed while she was absent on a period of maternity leave until she had looked herself for the information.  With some considerable understatement, Mr Feldman indicated in cross-examination that he could see how she would have been upset.  

78.	Ms Wallace discussed the possibility of the claimant retaining some permanent general recruitment in the course of the telephone call one week later on 6 August 2014.  If there had indeed been such a heated meeting on 30 July, leading to a genuine misunderstanding, it is puzzling that it took one full week to clarify the issue.  This delay seems to be more consistent with the claimant’s proposition that it had always been intended to remove all permanent recruitment from her responsibilities and that this only changed in an ad hoc arrangement once she had complained.  

79.	In any event, Mr Feldman accepted in cross-examination that this telephone call on 6 August 2014 had been the first occasion on which the possibility of retaining some permanent general recruitment had been mentioned to the claimant.  When Mr Feldman was asked in cross-examination whether the claimant had been Head of Temporary Recruitment with the possibility that she would retain some permanent general recruitment, he stated that this was:-

		“A probability rather than a possibility, but yes.”

80.	The claimant lodged a grievance on 25 September 2014.  It raised several matters.  Firstly, the claimant alleged that there had been a failure to inform her of job opportunities while she had been absent on maternity leave.  Continuing the inevitable confusion in this case in relation to job titles, she referred to two particular posts, ie:-

“Team Leader Banking and Finance and Permanent Manager Northern Ireland.”

	The claimant also alleged that there had been a failure to inform her of changes to the bonus scheme while she had been absent on maternity leave.  She also alleged that there had been a similar failure to inform her of the restructuring of her business unit, that she had been demoted, that there had been a disparity of pay and a lack of clarification and a lack of adequate information.  

81.	Mr Feldman replied, very promptly, on 29 September 2014 to the grievance appointing himself as the investigating officer.  Mr Feldman in cross-examination persisted in referring to this grievance as an ‘ultimatum letter’.  It is not entirely clear what point Mr Feldman was seeking to make in this regard.  In any event, Mr Feldman’s appointment of himself as investigating officer was clearly inappropriate, given that part of the claimant’s general area of grievance might have involved Mr Feldman, although he had not been specifically named in the letter of grievance.  That initial appointment does not however appear to the tribunal to be significant in this matter because Mr Feldman was rapidly replaced by                            Ms Cara Woods who had in fact been suggested by the claimant as an appropriate investigator.  

82.	Ms Woods was obviously subordinate to both Mr Harvey and Mr Feldman.  She actually reported to Mr Feldman as her line manager.  That, even with the suggestion of her name by the claimant, was potentially undesirable since she could not properly be perceived as someone who would act independently and who could reasonably be expected to be able to make findings against Mr Feldman and Mr Harvey of acts of discrimination.  That said, the respondent organisation was in a difficulty because Mr Feldman and Mr Harvey were in the two most senior posts within Northern Ireland and it would have been difficult to appoint somebody else to hear that investigation.  While difficult, it would, nevertheless, not have been impossible for the respondent organisation to have appointed somebody from another jurisdiction or perhaps to have appointed an independent HR specialist.  In any event, given the claimant’s consent to Ms Woods’ appointment, the tribunal does not think that the appointment itself is a matter of particular concern.  

83.	That said, the grievance report by Ms Woods does, at certain points, indicate a worrying lack of impartiality and a tendency on Ms Woods’ part to identify herself with the respondent to the grievance.  The report refers to ‘everyone’ agreeing that the claimant’s role had not been restructured.  Ms Woods accepted in                   cross-examination that ‘everyone’ referred to everyone on the respondent side and admitted that the claimant did not agree that her role had not been restructured.  Ms Woods also in cross-examination referred to ‘the claimant and ourselves’.  By ‘ourselves’ it was plain that Ms Woods meant to refer to the respondent to the grievance.  The report compiled by Ms Woods was nevertheless a thorough piece of work putting forward sensible conclusions.

84.	Ms Woods responded very promptly to the grievance, after having interviewed the participants in a comprehensive written report dated 23 October 2014.  That report set out each of the different headings of complaint and recorded her findings.  

85.	In relation to the alleged failure to inform the claimant of the two job opportunities, while on maternity leave, Ms Woods accepted that there had been business reasons for recruiting the post holders by headhunting.  That said, she recommended that the respondent organisation would ‘benefit from reviewing their advertisement approach to ensure roles were advertised internally, and where appropriate, externally’.

86.	In relation to the alleged failure to inform the claimant of changes to the bonus scheme while on maternity leave, Ms Woods stated that she had discovered ‘no conscious decision on the part of the company to exclude you from this communication’.  She recorded that the respondent believed that the claimant had some access to e-mails and to the newsletter and that the respondent had been concerned about unnecessary and inappropriate contact during her period of maternity leave.  She stated that:-

“If anything, there was a misunderstanding of what you had access to and how much information you wished to be given during maternity leave.”

She recommended that it would be beneficial to the respondent organisation and to those who were about to commence maternity leave to have a better understanding of each other’s expectation in relation to business communications during maternity leave.  She recommended a review of the current ‘notice of intention to take maternity leave’ to see how and if it could be improved.  

87.	In relation to the alleged failure to inform the claimant of the restructuring of her business unit/role, Ms Woods recorded that Mr Harvey and Ms Wallace had no recollection of discussing a change in job title while Mr Feldman had believed that in the meeting on 30 July 2014 the claimant had been referred to as Head of Temps.  She recorded, however, that all three parties were in agreement that there had been no official change in the job title and no such change had been sanctioned at Board level.  In her cross-examination, Ms Woods stated that this created ‘ambiguity’.  

88.	It seems to the tribunal that this is just another in a long line of examples of misunderstandings.  It seems clear that the respondent’s witnesses were technically correct in stating that there had been no official or sanctioned change in job title and that there had been no specific discussion of the title as such.  That said, it was clear that the use of the title ‘Head of Temps’ (or Head of Temporary Recruitment NI or some other variant) had been used in relation to the claimant both at the meeting on 30 July 2014 and subsequently and it was equally clear that the title ‘Head of Perms’ (or some other variant) had been used consistently for Ms Kearns both on 30 July 2014 and subsequently.  However, it also seems correct that no one, including the claimant, specifically raised the issue of the title on 30 July 2014.  

89.	Ms Woods stated that:-

“Given your job title has not been officially changed and there is confusion as to whether a change has actually been discussed, I recommend a round table discussion to determine if a change in job title is required and if so what it should be.  This discussion should include Mairead Scott, Pete Feldman, Sinead Wallace and Brian Harvey.”

90.	In relation to the allegation that everyone in the business was aware of that change in the organisation, Ms Woods stated that any decision at the meeting to be held about potential changes in job titles should be communicated officially through the business.  

91.	In relation to the alleged demotion while on maternity leave, Ms Woods noted that there was confusion and indeed differing accounts in relation to the information exchanged on this point and that it could not be verified.  That in itself to the tribunal does not seem in the least surprising given that these conversations appear to have been informal, unminuted and less than precise in terms of the titles or scope of posts and in terms of particular explanations of structural plans.  Ms Woods made the very sensible suggestion that a full discussion of the role to be held by Ms Kearns would help clarify the claimant’s understanding and there should be a full discussion regarding the budget and the scope of the claimant’s role.  She also clarified that it was absolutely clear at that point that the claimant would retain permanent general recruitment where that recruitment involved a salary of less than                        £30,000.00 per annum, ie the vast bulk of permanent general recruitment.  

92.	In relation to the complaint that the post occupied by Ms Kearns had an elevated role in the business, Ms Woods stated that as far as the organisational perception of the claimant’s role and the role held by Ms Kearns was concerned, the respondent’s witnesses confirmed that they saw Ms Kearns’ role as a peer position to that held by the claimant.  Again Ms Woods made a very sensible suggestion, ie that an organisational structural map setting this out in clear terms should be communicated within the business.  

93.	In relation to the disparity of pay between the claimant and Ms Kearns, Ms Woods set out the history in relation to this and confirmed that a salary review for the claimant had been included by Mr Feldman in a general business proposal that had gone to the Board and that this had been approved and confirmed to the claimant in writing in early October 2014.  Ms Woods stated that prior to Mr Feldman’s appointment, pay parity had not been considered.  

94.	In relation to the alleged lack of clarification in the new role, Ms Woods referred to two particular areas, ie that of technical temporary recruitment and that of permanent recruitment.  In relation to the first point, Ms Woods stated that Mr Harvey, Ms Wallace and Mr Feldman stated that area of technical temporary recruitment had never been within the claimant’s remit before maternity leave and that appears to be common case.  She also confirmed that it would remain as a separate business unit outside the claimant’s responsibility.  Again that appears to be common case.  Ms Woods recorded that Mr Harvey and Mr Feldman did not ‘specifically’ recall a discussion surrounding technical temporary recruitment on 30 July 2014 and that they could not recall any outstanding action regarding this issue.  Ms Woods recorded that Ms Wallace did not recall this as being an outstanding issue following her discussion with the claimant after the meeting on 30 July 2014.  

	This particular issue appears to be one which has upset the claimant greatly.  However, given that the area of technical temporary recruitment was never part of the claimant’s role and was never likely to be part of the claimant’s role, the tribunal is unable to understand the significance of all of this.  It seems likely that some sort of brief discussion of this was raised by the claimant at some point and that, at best, an equivocal answer was given.  

95.	In relation to permanent general recruitment, Ms Woods confirmed again that the area of permanent general recruitment would remain with the claimant and stated that no one (on the respondent’s side) recalled advising that the responsibility for permanent general recruitment had changed.  That statement appears to be accurate because it seems clear that during the meeting on 30 July 2014 there was no specific discussion of permanent general recruitment other than the frequent use of the titles referred to earlier.  

	Again, Ms Woods being made a sensible suggestion that these two areas of misunderstanding should be clarified in writing.  

96.	In relation to the alleged failure to provide adequate information as requested, Ms Woods recorded the understanding of the respondent’s witnesses in relation to outstanding matters.  She stated that as far as the request for an amended contract was concerned, Mr Feldman had indicated that since he did not believe that the claimant required a revised contract, none had been issued.  However, Ms Woods stated that it had been identified that the current contract on file was dated 5 January 2007 and she sensibly recommended that this contract was reviewed in light of the meetings recommended throughout the grievance decision.  

97.	In relation to the job description for the claimant’s role, Ms Woods acknowledged that an opportunity had been missed to provide clarity and she recommended that the job description currently held by the claimant was reviewed to ensure that it accurately reflected the new role.  

98.	As far as the queries in relation to an amended budget and cost lines were concerned, Ms Woods stated that she had been unable to verify what had been discussed in this regard but again made a sensible recommendation, ie that a discussion took place, followed by a written confirmation, of the budgetary expectation for the claimant’s role.  

99.	As far as the issue of salary was concerned, Ms Woods repeated that approval had been granted at the end of September 2014 and that it had subsequently been communicated in early October 2014 to the claimant.  

100.	The grievance decision finished with a summary of the recommendations, ie:-

“I recommend a meeting to take place between Pete Feldman, Sinead Wallace, Brian Harvey and yourself to discuss:-

(1)	your job title, what is appropriate and what appropriately reflects your remit and responsibility level;

(2)	the role of the Head of Specialist Appointments, NI, how it differs from the role of Permanent Manager and how it is similar in level to your role; and

(3)	review of the current job description of Area Sales Manager is completed to ensure it accurately reflects the role.

General discussion points and agreement shall be followed up in writing.

(4)	I recommend a meeting to take place between Brian Monroe and Sinead Wallace regarding the current budget allocation to ensure no ambiguity exists regarding responsibility and rationale for this, this should be followed up in writing.

(5)	A business communication is made regarding the structure of the organisation specifically the remit of each of the teams and respective managers based on the first floor in the Boat (Belfast Head Office).”

101.	The grievance decision concluded with the following clear statement:-

“You have the right to appeal this decision.  Should you wish to avail of this please do so in writing within 10 working days of the date of this letter for the attention of Barry Mulligan.”

102.	The claimant responded on 27 October 2014 in writing.  She complained again of the failure to inform her of job opportunities while she was on maternity leave and she had not been given the opportunity to compete for those roles.  She alleged that her job title had been changed and that she was clear that that issue had been discussed at length during her initial meeting.  That must refer to the meeting on 30 July 2014.  The claimant’s own notes of the meeting do not point to any specific discussion about the title as such.  The claimant also complained again about demotion while on maternity leave.  She stated that the decision to appoint a Head of Special Appointments/Head of Perms (yet another new title apparently used at random) was not explained to her at any meeting.  She stated that:-

“I believe that this is a construction put onto a position after I raised a grievance because the impact on my role was clearly not taken into account.  Also if this is a peer role there should be parity in pay which there is not.”

103.	It does not seem to the tribunal to be correct for the claimant to assert that the decision to appoint Ms Kearns in whatever role had not been explained to her at any meeting.  It had been partly explained, albeit badly, at the initial meeting on 30 July 2014, and in the period following that initial meeting the respondent had clarified that the vast bulk of the claimant’s prior responsibilities would remain with her with the sole exception of the very small number of permanent general recruitments attracting a salary of more than £30,000.00 per annum.  Furthermore, it is completely impossible to understand the claimant’s attitude where she stated that at that point on 27 October 2014 there should be parity of pay ‘which there is not’.  The claimant had been informed in early October 2014 that her pay had been increased to £50,000.00 per annum.  That was the salary being paid to Ms Kearns.  There was parity of pay at that point.  While it could and should have been addressed earlier, it had already been addressed and resolved at that point.  

104.	The claimant stated that she was disappointed that senior managers had denied conversations ‘which she was able to establish had taken place’.  She felt there was no point in appealing the grievance and that trust and confidence had been undermined.  She resigned.  She stated:-

“By reasons of my treatment during maternity leave and the outcome of the grievance process, I feel I have no option but to resign with immediate effect.”

105.	The claimant did not take up the offer of an appeal.  She did not take up the suggestions made by Ms Woods.  She did not acknowledge that pay and status had been rectified and clarified at this point and did not acknowledge that the new bonus scheme was not a detriment.  In her cross-examination she was asked why she resigned.  She stated that she had been ‘absolutely disgusted’ that the management team had failed to accurately recall conversations.  The claimant stressed that the ‘fundamental issue’ was that managers had failed to recall particular information.  The claimant therefore focused on her view of the evidence of Mr Feldman, Mr Harvey and Ms Wallace in the grievance investigation.  Given this clear statement, the tribunal concludes that the reason for the resignation was the claimant’s reaction to the recollection of those three individuals.  The issue of pay, status and bonus had been resolved and could have been further clarified if the suggestions put forward by Ms Woods had been adopted.  Those matters, and the failure in the past to consult, were not the real reason or part of the reason for the resignation.  

106.	The next part of the claimant’s claim related to an alleged breach of contract.  The claimant had been notified on 24 November 2014 that, as a result of her resignation, there would be a requirement in accordance with the terms of her contract of employment to repay maternity pay.  That appears to the tribunal to be a standard and unremarkable contractual provision and one of which the claimant should have been well aware.  It is also clear from the cross-examination of Mr Feldman, and this was not rebutted, that an employee in Ballymena had resigned some months earlier following maternity leave and that a similar deduction had been imposed.  It was also clear that the deduction was imposed by the Finance Department of the respondent organisation and not by Mr Harvey, Mr Feldman or Ms Wallace.  The tribunal cannot see any grounds on which this contractual provision should have been varied in these particular circumstances.  

Decision

107.	This claim divides into four distinct parts:-

(i)	The claim of unlawful discrimination or detriment in relation to the claimant’s treatment while on maternity leave, both before and after she asked for the meeting which took place on 30 July 2014.  

(ii)	The claim of breach of Regulation 18 of the 1999 Regulations.

(iii)	The claim of constructive unfair dismissal.

(iv)	The claim of breach of contract in relation to the deduction of maternity pay from her final salary payment and a claim of unlawful victimisation in that regard.

Discrimination/Detriment

108.	The evidence in this case presented a confused picture; not least because the                 re-organisation of the respondent’s structure appeared not to have been properly documented, titles of posts were, to say the least, fluid, and meetings and conversations were not minuted or properly followed up.  

109.	That said, certain matters are clear.  The claimant was on maternity leave and had asked to be kept informed of both changes and opportunities.  She had not been kept informed of changes in the organisation and of changes which had been proposed in her own post.  The original intention of the respondent had been to create a new post for Ms Kearns and, on the balance of probabilities, the original decision of the respondent had been to make Ms Kearns responsible for all permanent recruitment, including permanent general recruitment, which had previously fallen to the claimant.  

	Given the use of the title, Head of Perms/Head of Permanent Recruitment (Northern Ireland)/Head of Permanent Recruitment (Belfast) (and quite possibly other variants) by Mr Harvey, Mr Feldman and crucially by Ms Kearns herself in her Linkedin profile, it is highly unlikely that the original intention, formulated and put in place during the claimant’s maternity leave, had been to create a purely Head of Specialist Recruitment (Northern Ireland), with some minimal senior permanent general recruitment as an add-on.  If that had indeed been the original intention of the employer, the title used for Ms Kearns and indeed for the claimant would have been different from the start.  Ms Kearns would have been referred to ab initio as the Head of Specialist Recruitment (Northern Ireland) and would have been referred to by no other title.  Furthermore, she would have described herself as such in her Linkedin profile.  

110.	The tribunal notes that Ms Kearns did not give evidence to this tribunal and that it was referred to no documentation relating to her recruitment and to her initial role.  Ms Kearns had previously been the Commercial Director in another recruitment firm and had agreed to move the respondent’s organisation.  The tribunal considers that it is highly unlikely that Ms Kearns, apparently an experienced recruitment professional, would have moved posts without having known precisely the details of her new post and without knowing precisely the responsibilities of that new post.  The tribunal is therefore left wondering why there had been no evidence from Ms Kearns to this tribunal and why there was no contemporaneous documentation relating to her initial appointment and her role as initially defined.  

111.	The tribunal also notes that Ms Wallace accepted in cross-examination that Ms Kearns had been appointed to deal with permanent recruitment; that this part of the re-organisation had been linked to the departure of a lower level manager who had been responsible for permanent general recruitment, and that the issue of permanent general recruitment had not been discussed at all with the claimant in the meeting on 30 July 2014.  That meeting was a meeting which Mr Feldman described as heated and where he states that the claimant had been querying both her role and the appointment of Ms Kearns.  If it had indeed been intended at that point that permanent general recruitment would almost completely remain with the claimant, that would have been explained to the claimant in the course of that meeting.  It was not.  

112.	It is also clear that Mr Feldman had not considered the position of the claimant at all when taking part in the recruitment of Ms Kearns and that this failure to consider her role was because she had been on maternity leave.  He did not even know of the claimant’s precise role and responsibilities.  He was only briefed on that issue just before the meeting which took place on 30 July 2014, long after the appointment of Ms Kearns and more than six weeks after he had been appointed to her new role.

113.	The tribunal is, however, satisfied that the two posts to which the claimant referred, ie the post held by Ms Kearns and the Head of Banking and Finance post were not posts in which the claimant would, in reality, have been interested and were not posts which had been realistically open to the claimant.  

	The post held by Ms Kearns was primarily to do with the recruitment of specialist staff.  Even allowing for the initial intention to include all permanent general recruitment, the claimant had no expertise in the bulk of this role which concerned specialist recruitment.  The Banking and Finance post was lower paid than her existing post and again in an area in which the claimant had no expertise.  

	That said, the claimant should have been kept informed of changes which might have impacted upon her, ie she should have been informed of the appointment of Ms Kearns and of the impact of that appointment on her own role.  

114.	The respondent organisation clearly acted relatively quickly following the matters raised by the claimant on 30 July 2014 and in her subsequent grievance.

	Pay was aligned between the claimant and Ms Kearns, although the formalisation of that did not take place until early October 2014.  Given the fact that that increase in pay had no financial impact on the claimant at that point, where maternity pay had been calculated in relation to prior pay, and given that it was slotted into a general salary revision proposal by Mr Feldman, the delay does not appear to the tribunal to be particularly significant, although the claimant would have been left wondering for some two months as to whether it would finally be confirmed.  

	It had also been clarified that Ms Kearns was a peer appointment and that the claimant shared equal status.  Both would report direct to the Board and would be the only persons at that level who would do so.  

	Permanent general recruitment had also been clarified, with the vast bulk of the work remaining with the claimant as before.  Only a tiny fraction of that work transferred to Ms Kearns with the introduction of a new artificial cut-off point of posts attracting a salary in excess of £30,000.00 per annum.

115.	Crucially the grievance decisions set out various sensible proposals to further clarify the claimant’s status, budget and responsibilities.  

116.	None of the respondent’s subsequent actions, as outlined the previous paragraph, alter the fact that the claimant had been ignored and forgotten about while on maternity leave.  That was a detriment suffered by the claimant and by no other managers.  It occurred because she was on maternity leave.  

117.	It is clear that the claimant had been significantly distressed by that.  Particularly in the absence of specific medical evidence, assessing injury to feelings is particularly an inexact science at best.  

118.	As the Court of Appeal (Great Britain) said in Vento  v  Chief Constable of West Yorkshire Police [2003] IRLR 302:-

“It is self evident that the assessment of compensation for an injury or loss, which is neither physical nor financial, presents special problems for the judicial process, which aims to produce results objectively justified by evidence, reason and precedent.  Subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression and so on and the degree of their intensity are incapable of objective proof or of measurement in monetary terms.  Translating hurt feelings into hard currency is bound to be an artificial exercise.”

119.	In HM Prison Service  v  Johnson [1997] IRLR 162, the EAT stated that awards for injury to feelings are compensatory rather than punitive.  A desire to express indignation at an employer’s conduct should not be allowed to inflate an award.  Awards should also bear some broad similarity to the range of awards in personal injury cases.

120.	The lower band (now between £500.00 and £6,000.00) is appropriate for less serious cases such as where the act of discrimination is a one-off occurrence.  The middle band (now between £6,000.00 to £18,000.00) is for more serious cases which do not merit an award in the highest band.  The highest band (now between £18,000.00 and £30,000.00) is for the most serious cases such as where there has been a lengthy campaign of discrimination or harassment.

121.	The tribunal is satisfied that there had been a clear injury to feelings in this case.  The claimant had been significantly distressed over a period of some weeks.  After listening to the claimant give evidence in detail the tribunal concludes that the appropriate level of compensation is at the lower end of the middle Vento category and awards compensation of £7,500.00 for injury to feelings.  

1999 Regulations

122.	The claimant argued that the respondent had been in breach of Regulation 18 in that it had not permitted her return to the same job after her period of additional maternity leave.  

123.	The claimant returned from additional maternity leave (‘AML’) as opposed to ordinary maternity leave (‘OML’), to a brief period of annual leave before resigning.  Under Regulation 18(2) of the Maternity and Parental Leave etc Regulations (Northern Ireland) 1999, she was:-

“Entitled to return from (additional maternity) leave to the job in which she was employed before her absence, or, if it is not reasonably practicable for the employer to permit her to return to that job, to another job which is both suitable for her and appropriate for her to do in the circumstances.”

124.	Regulation 2 defines ‘job’ in relation to an employee returning from AML.  According to that Regulation, ‘job’ means:-

“The nature of the work which she is employed to do in accordance with her contract and a capacity and place in which she is so employed.”

It refers to the ‘nature of the work’.  It does not specify that the job should be identical in each and every respect.

125.	Regulation 18(5) provides that the claimant’s right to return from AML is to return:-

“(a)	On terms and conditions as to remuneration not less favourable than those which would have been applicable to her had she not been absent from work at any time since –

(i)	... the commencement of the ordinary maternity leave period which preceded her additional maternity leave.

(b)	With her seniority, pension rights and similar rights as they would have been in the period or periods of her employment prior to her additional maternity leave period –

(c)	otherwise on terms and conditions not less favourable than those which would have been applicable to her had she not been absent from work after the end of her ordinary maternity leave period ... .

										[tribunal’s emphasis]

126.	The tests under Paragraph 5 of Regulation 18 are different for (a)  remuneration, (b)  seniority, pension rights and similar rights. and (c)  other terms and conditions.  

	In relation to remuneration, the appropriate comparison is with remuneration immediately before OML.  Since the claimant’s pay increased on her return from AML, this is not an issue in the present case.  

	In relation to seniority etc, the comparison is with such rights as the claimant enjoyed before AML.  The tribunal has concluded she did not lose seniority at any stage.  Her seniority was, if anything, enhanced in that she was going to be one of two individuals who reported direct to the Board.  There was no evidence before the tribunal in relation to pension rights or in relation to anything else that could fall under this sub-paragraph.  It is therefore not an issue in the present case.  

	In relation to ‘otherwise on terms and conditions’, the appropriate comparison is with the end of OML.  The tribunal has heard no evidence in relation to that precise date or indeed in relation to relevant ‘terms and conditions’ enjoyed by the claimant at that specific point in time part of the way through her total maternity leave absence.  

127.	However, in relation to that sub-paragraph, there is no requirement that relevant terms and conditions (those terms and conditions other than remuneration, pensions, etc) should be identical to those enjoyed at the end of OML.  The                   sub-paragraph requires simply that they should be ‘not less favourable’.  A degree of flexibility is built into the Regulations.

128.	There is very little appellate authority in relation to the above provisions or in relation to their GB equivalents.  

129.	In Blundell  v  The Governing Body of St Andrew’s Catholic Primary School and Assid [2007] ICR 1451, the EAT considered the case of a claimant who was employed as a teacher and was teaching a reception class in a primary school.  She was going to maternity leave.  The possibility of her being employed in a floating role was discussed and then, following her return from maternity leave, she was placed in a Year 2 teaching role, again in a primary school.  

	This case generated appeals in other matters but the EAT’s consideration of the legislative provisions was not criticised.  

130.	The EAT referred to the GB equivalents of the Northern Ireland provisions referred to above and quoted, without criticism, the decision of an industrial tribunal in Edgell  v  Lloyds Register of Shipping [1977] IRLR 463.  The EAT quoted from a particular passage in the tribunal’s decision, which read:-

“The representative of the applicant tried to argue that the case depended on the meaning of the words ‘nature of the work’ and ‘capacity’.  We do not agree.  This is not an exercise in theory or semantics.  It is a simple matter of asking two questions : what work was the applicant doing before her leave, and what work was she doing or given to do on her return to work? – it is quite clear that the nature of the work was book-keeping, and her capacity was that of an employee in Grade 13.  The question of the place in which she was so employed of course does not arise because she went back to the same office – it must be borne in mind that a job description is not a contract of employment.  It sets out the fine limits within which the employee’s work is carried out, so that there can be no dispute as whether the instructions or orders given by an employer to an employee are within the four corners of the contract of employment or outside it, and of course if the orders were outside it then the employee would be justified in refusing to carry out those orders as being outside her contract of employment – the act does not say that an employee that who returns after maternity leave is entitled to exactly the same job back again or anything like that.  It says that the job means the nature of the work which she is employed to do, in accordance with her contact and the capacity and place in which she was so employed.  This lady was re-engaged after maternity leave on exactly the same sort of work, ie book-keeping, as she was engaged in doing before she had her baby.  Her capacity was the same, that is to say she did not lose status at all.  She was Grade 13 when she left and she was Grade 13 when she returned after maternity leave ... .”

131.	It seems to this tribunal clear that the wording of the legislation, as indicated by the tribunal in Edgell, as apparently approved by the EAT in Blundell, does not require the provision of an absolutely identical post.  If that had been the intention the wording of the legislation would have been different.  The statutory definition of ‘job’ at Regulation 2 provides for a common sense assessment of the nature of the work in accordance with contract, capacity and place.  Jobs are not fixed in stone.  They vary and that variation must be taken into account.  It is the ‘nature of the work’, as defined, that is important.  The EAT in Blundell in analysing the decision of the Employment Tribunal in that case asked:-

“Was it outside the normal range of variability which the appellant could reasonably have expected?  It is clear that the tribunal found that it was not.”

132.	The Regulations provide two different scenarios; one where the employee returns after OML and one where the employee returns after AML.  In the present case the latter is the relevant scenario and the legislation provides for the possibility that circumstances would have changed so significantly that the original ‘job’, as defined in the legislation, was no longer available.  The Regulations provide that where it is not reasonably practicable for the employer to permit her to return to the previous job, the employer may provide the employee with another job which is both suitable for her and appropriate for her to do in the circumstances.  

	The EAT in Blundell stated that the tribunal should bear in mind the purposes of the legislation and the fact that the Regulations themselves provide for the exceptional case.  It stated that the legislation:-

“Seeks to ensure that there is as little dislocation as reasonably possible in her working life so as to avoid adding to the burdens which will inevitably exist in her family or private life simply because she has a very young infant making new demands upon her.”

It stated that given the allowance for the exceptional case, ‘job’ could ‘be quite specifically defined’.  

133.	That said, ‘job’ must be defined in accordance with the provision in Regulation 2.  It does not provide that the ‘job’ must be identical in each and every respect.  The definition focuses on the nature of the work.  In the present case the nature of the work, having regard to contract and capacity (place is not relevant), appears to the tribunal to be the same.  Minimal differences cannot be determinative.  

134.	In Harvey on Industrial Relations and Employment Law, Division DJ, Section 7, Paragraph [180] the EAT’s decision in Blundell is summarised as stating that:-

		“An artificially wide definition of ‘job’ is not required in order to create an 	appropriate balance between employer and employee.”

	In disregarding, for the purposes of this claim, a minimal reduction in responsibilities, the tribunal does not believe that it is seeking to imply an ‘artificially wide definition’ of the word ‘job’.  It is applying a statutory definition.  

135.	The only other appellant authority which the tribunal can locate is that of Kelly  v  Secretary of State for Justice [UKEAT/0227/13].  That decision does not appear to be of any useful relevance to the present case.  It concerned an employee in the Prison Service who was engaged as a mental health nurse.  Following her return from maternity leave she was offered the post of an ordinary prison officer.  Clearly, that was not a minimal or ordinary change in day-to-day employment responsibilities which left the ‘nature of the work' unchanged.  That was plainly a significant, indeed a drastic, change which meant that she was not being offered the same ‘job’ on her return from maternity leave.  

136.	The present case seems entirely different.  As the EAT in Blundell itself suggested, there must be a ‘normal range of variability’.  The proper scope of that range will change from job to job.  In Blundell the claimant had been employed as a teacher in a primary school.  In the present case, the claimant had not been employed to fill a specific fixed role which had been defined within rigid parameters.  The contracts signed in 2001 and 2007 allowed for variable duties as directed by the respondent.  The claimant in the present case was engaged before her maternity leave at a particular level in charge of temporary and permanent general recruitment.  Despite the initial intentions of her employer and the subsequent confusion, on her return from additional maternity leave she was engaged (although on annual leave) to do the same post with a tiny reduction in responsibilities which was restricted to that small and entirely unquantified number of permanent general recruitments involving a salary of over £30,000 per annum.  Given that the claimant was herself not able to put a figure on this, other than saying that she had done ‘some’ of such recruitments in the past, that is, in the tribunal’s view, too minimal to have any real effect.  In saying so, the tribunal does not believe it is construing a job as covering ‘a broad spectrum of work’.  

137.	The tribunal therefore concludes that the respondent was not in breach of its statutory duties under Regulation 18.  

Constructive unfair dismissal

138.	The claimant alleges that she resigned in response to a repudiatory breach in the implied duty of trust and confidence.

139.	The tribunal has concluded that the alleged repudiatory breach relied on by the claimant was the evidence given by Mr Feldman, Mr Harvey and Ms Wallace in the grievance investigation.  As indicated above, the claimant was asked in                   cross-examination why she had resigned.  Her response was that she had been ‘absolutely disgusted’ that the management team had failed to accurately recall conversations.  She described this as ‘the fundamental issue’.  She alleged that she then completely lost trust and confidence.  Pay, status and bonus had all been resolved and explained at that stage.  She had continued employment (on annual leave).

140.	It is, of course, not the case that a constructive dismissal is established simply because an employee felt that there had been a repudiatory breach of contract.  The test is an objective rather than a subjective test.

	The House of Lords in Mahmud  v  Bank of Credit and Commerce International SA [1997] ICR 606 stated that the test in these cases is not whether the employee had subjectively lost trust and confidence in the employer but whether, objectively speaking, the employer’s conduct was likely to destroy or seriously damage the terms and conditions which an employee is entitled to have in his employee.

141.	The tribunal has to apply that objective test by looking at the relevant circumstances when the claimant concluded that the evidence given in the grievance investigation destroyed or seriously damaged the implied condition of trust and confidence.  At that point, the previous errors of the employer had been resolved.  Pay had been aligned with that of Ms Kearns.  The claimant had suffered no financial loss.  The new bonus scheme had been explained to the claimant and would have involved no financial loss.  It was or should have been clear to the claimant that she was the equal of Ms Kearns in terms of status; only the claimant and Ms Kearns would report direct to the Board.  Apart from a minimal number of senior general permanent recruitments, her job was to remain the same but with a higher salary and a potentially higher bonus.  Sensible suggestions had been set out in the grievance decision to remove any lingering difficulties that might remain.  The claimant had participated in the grievance procedure; presumably to achieve that end.

	As against all of that, the claimant disagreed with the respondent’s recollection of unminuted discussions in a situation where no one has a perfect recollection.

142.	The claimant failed to avail of the right of appeal.  That would have been a process in which the claimant could have participated and where the claimant could have put forward her own suggestion for an appropriate person to hear that appeal.

143.	It is the law that there need not be a sole or predominant cause of a resignation – see Wright  v  North Ayrshire Council [2014] ICR 77.  However, the evidence in this case was clear.  In this case there was a sole cause; the reaction of the claimant to the evidence given by the respondent to the grievance investigation.  There was no breach of the 1999 Regulations.  Other matters had been resolved.

144.	The tribunal concludes that on an objective test there was no serious repudiatory breach of contract which led to the resignation.  The respondent was actively trying to retain the claimant in employment with an enhanced salary.  No employee, acting rationally, could have concluded that there had been a serious and repudiatory breach of contract because of the differing recollections recorded in the grievance investigation.  The claim of constructive unfair dismissal is therefore dismissed.

145.	If the tribunal is wrong to conclude, despite the evidence of the claimant in                   cross-examination, that there was a sole reason for the resignation, the decision on the constructive unfair dismissal claim would have been the same.  Even if the reason for the resignation had included pay disparity, status, the new bonus scheme and the failure to keep the claimant informed during maternity leave, those matters had already been resolved.  The claimant was better paid, with a better bonus scheme and with the same or better status.  Sensible proposals had been put in place to resolve any lingering feelings of hurt.  If all of that were not enough, an appeal was offered.  Objectively this was not a situation involving a repudiatory breach of contract entitling the claimant to resign.

Breach of contract

146.	The claimant alleged that there had been a breach of contract and indeed victimisation in relation to the decision of the respondent to recoup part of her maternity pay from her final payment salary.  

147.	It was not in dispute that that was a relevant contractual provision in the claimant’s contract.  The respondent put forward evidence, which was not rebutted, that another employee in the Ballymena area had some months earlier resigned after or during maternity leave and that she had been required to pay back part of her maternity pay in the same manner.  

148.	The tribunal concludes therefore there was no breach of contract in this respect.  The recoupment of part of maternity pay was no more than the standard operation of a common and entirely unremarkable contractual provision.

149.	The claimant has failed to put forward a prima facie case that this was, in any event, an act of victimisation arising out of her complaint of unlawful discrimination.  It was the respondent’s evidence, which was again not rebutted, that the decision was made by someone in the respondent’s finance department and that no one involved in the grievance had been involved in this decision.  The claim of unlawful victimisation is therefore also dismissed.  

Interest on injury to feelings award

150.	The tribunal is obliged to consider whether to include interest on an award for injury to feelings – the Industrial Tribunals (Interest on Awards in Sex Discrimination and Disability Discrimination Cases) Regulations (Northern Ireland) 1996.

	Interest at the rate of 8% per annum from the date of the act of discrimination is potentially payable.  The EAT stated in Derby Specialist Fabrications Ltd  v  Burton [2001] IRLR 69:-

“It is clear that Parliament intended that, unlike interest on other awards where the midpoint was to be taken, interest on an award for injury to feelings should normally be from the date of the discriminatory act.”

	There is no indication that serious injustice would be caused by calculating interest over this period.

151.	Interest is therefore awarded from the point at which the claimant should have been kept informed of changes in the respondent’s organisation, from 20 June 2014 when Ms Kearns was initially appointed:-

		20 June 2014 to 24 July 2015			=		400 days

		390/365 x 8% x £7,500.00				=		£657.53

152.	The total interest therefore awarded is £657.53.

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

Vice President

Date and place of hearing:	13 – 15 May 2015, Belfast

Date decision recorded in register and issued to parties: