Hughes v Tom Morrow and Company Limited [2010] NIFET 00025

FAIR EMPLOYMENT TRIBUNAL

CASE REF: 25/10FET and 273/10

CLAIMANT: Helena Hughes

RESPONDENTS: 1. Tom Morrow and Company Limited

2. Roberta Simpson

DECISION

The unanimous decision of the tribunal is as follows:-

(A) The claimant was unfairly dismissed by the first-named respondent, Tom Morrow and Company Ltd (“Morrows”), and it is ordered that Morrows shall pay to the claimant the sum of £10,238 compensation in respect of that unfair dismissal.

(B) None of the claimant’s discrimination claims against Morrows are
well-founded. Accordingly, all of those claims are dismissed.

(C) None of the claimant’s claims against the second-named respondent (Mrs Simpson) are well-founded. Accordingly, all of those claims are dismissed.

Constitution of Tribunal:

Chairman: Mr Paul Buggy

Members: Mr Barry McGuire

Mrs Sylvia Butcher

Appearances:

The claimant was self-represented.

The respondent was represented by Dr D Sharpe, Barrister-at-Law (“Mr Sharpe”), instructed by Carson McDowell Solicitors.

REASONS

1. The claimant was employed by the first-named respondent, Tom Morrow and Company Limited (“Morrows”), as a part-time sales assistant, in the Ladies’ Department of its Dungannon clothing store, from 12 February 2007 until 21 November 2009. She was dismissed from the latter date, ostensibly on the ground of redundancy.

2. In these proceedings, the claimant complains in respect of the following matters: First, she says that she was paid too little while she was employed by Morrows. Secondly, she says that she was subjected to detrimental treatment during her period of employment in Morrows. Thirdly, she complains in respect of her dismissal.

3. The claimant is a Roman Catholic (“a Catholic”).

4. The person who, in reality, owns Morrows, and the person who owned Morrows during the period of the claimant’s employment in the Dungannon store, is Mr Richard Morrow. He belongs to the Church of Ireland. So do his father and his mother. Mrs Roberta Simpson is the manager of the Ladies Department in the Dungannon store. Mrs Simpson is a Presbyterian. .

5. The Fair Employment and Treatment (Northern Ireland) Order 1996 (“the 1996 Order”) protects Protestants against any anti-Protestant discrimination which might be carried out by Catholics in the workplace. It also protects Catholics against any anti-Catholic discrimination which might be perpetrated by Protestants in the workplace. The latter type of discrimination is the type of discrimination being alleged in this case.

6. Sometimes, a Protestant discriminates against a Catholic (or a Catholic discriminates against a Protestant) on a subconscious or unconscious level. (The perpetrator does not realise why he is doing it; he does not have insight into the reasons for what he is doing.) However, in this case, the claimant asserts that all of the alleged discrimination occurred at an entirely conscious level. In other words, according to the claimant, each of the perpetrators always knew exactly why they were doing what they did do.

7. For the avoidance of doubt, we should make it clear that we realise of course that what is stated in this Decision, in relation to Protestant “discriminators”, would have equal resonance in relation to Catholic “discriminators”.

8. Sometimes, a Protestant discriminator discriminates against a Catholic because he prefers Protestants. And sometimes a Protestant discriminator discriminates against Catholics because he has an aversion to Catholicism. (For the avoidance of any doubt, we add that we are well aware that Catholic discriminators sometimes discriminate against Protestants because the victims are not Catholic, and sometimes those discriminators do so because the victims are Protestant).

9. In the circumstances of this case, the claimant has made it clear that she asserts that each and every act of alleged discrimination, on the part of each alleged discriminator, was affected solely by anti-Catholicism, as distinct from being affected by a preference for Protestants.

10. The effect of Article 19(2) of the 1996 Order, when read with Article 3 of that Order, is to make it unlawful for an employer, in relation to employment by him in Northern Ireland, to discriminate against an employee in the terms of employment which that employer affords to that employee. Pursuant to that aspect of Article 19, the claimant complains that she was subjected to unlawful anti-Catholic discrimination, because she was paid less than Mrs Audrey Flanaghan, a Protestant colleague of hers.

11. Article 19 of the 1998 Order, when read with Article 3 of the same Order, makes it unlawful for an employer to discriminate against a Catholic, on the ground of that employee’s Catholic’s religion, by subjecting him to any “detriment” (in the sense in which that word is used in Article 19 of the 1998 Order).

12. In these proceedings, the claimant complains of detrimental treatment which constitutes religious discrimination (the form of such discrimination being deliberate and anti-Catholic discrimination).

13. The claimant complains under the 1998 Order in respect of her dismissal. She says it was a “discriminatory” dismissal, within the meaning of the 1998 Order, in two ways.

14. First, she complains that an important reason for her dismissal was the anti-Catholic bias of the relevant decision-maker (Mr Richard Morrow).

15. Alternatively, the claimant asserts that the dismissal constituted an act of victimisation discrimination (in the sense in which the term “victimisation discrimination” is used in the context of the 1998 Order.) According to the claimant, she was dismissed because she had a confrontation with Mrs Simpson, in September 2008 and because, later that month, she complained, to Mrs Jean Morrow (who is the mother of Richard Morrow, and a manager in Morrows) about Mrs Simpson. She says that, during the confrontation with Mrs Simpson, she had alleged that Mrs Simpson had contravened the 1998 Order. Alternatively, she asserts that the confrontation constituted doing something under or by reference to the 1998 Order.

16. According to Article 3(4) of the 1998 Order, a person (“A”) discriminates by way of victimisation against another person (“B”), in any circumstances relevant for the purposes of the 1998 Order, if both of the following two conditions are met:-

(1) The first condition is that A must have treated B less favourably than he treats or would treat other persons in those circumstances.

(2) Secondly, the relevant treatment must have been carried out for a reason mentioned in Paragraph (5) of Article 3 of the 1998 Order.

17. The list of reasons, as set out in Paragraph (5) of Article 3, include the following:-

(1) B has alleged (whether or not the allegation so states) that some person has contravened the 1998 Order.

(2) B has “… otherwise done anything under or by reference to [the 1998] Order …”.

18. Richard Morrow was well aware of the fact that Mrs Flanaghan was being paid more than the claimant. He was responsible for that pay differential. If, reasons for that differential involve religious discrimination, he is the only person who can be regarded as the discriminator.

19. The claimant’s “detriment” complaints, of allegedly detrimental treatment, are based upon the following allegations:

(1) When shop samples came into the shop, she was not afforded equal access, alongside her Protestant colleague, Mrs Audrey Flanaghan (“Mrs Flanaghan”), to those samples.

(2) The claimant was asked to work on a Sunday at Christmas 2008.

(3) Mrs Simpson was twice chosen to go on staff training trips, whereas the claimant was never asked to go on those trips.

(4) Mrs Flanaghan was always given whatever holidays she wanted, without question, whereas the claimant’s holiday leave applications were usually the subject of prior negotiation and discussion with the employer.

(5) On one occasion, the claimant was asked to clean filthy shop premises, even though she was not appropriately dressed for such work.

(6) Mrs Flanaghan was often not required to work the full hours of her shift, whereas no such flexibility was offered to the claimant.

(7) On two separate occasions, the claimant was spoken to in a degrading fashion, because of mistakes she was accused of having made.

According to the claimant, Mrs Simpson was the person who was responsible for all of those acts.

20. It was accepted on behalf of the respondents that Richard Morrow was the person who decided that the claimant was to be dismissed. Therefore, if the dismissal was an act of religious discrimination, Richard Morrow must be the sole discriminator, and if the dismissal was an act of victimisation discrimination, Mr Richard Morrow must also be the sole discriminator in respect of that victimisation.

21. The claimant also makes a claim of unfair dismissal in respect of her dismissal. The latter claim is made under the unfair dismissals legislation (which is to be found at Part XI of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).

22. Article 15 of the Employment (Northern Ireland) Order 2003 (“The 2003 Order”) provides for statutory dispute resolution procedures. One of those procedures applies in the context of dismissals.

23. The relevant procedure is set out at Chapter I of Part I of Schedule 1 of the 2003 Order. According to the Standard Procedure, as set out in that Chapter, the following procedural requirements are prescribed:

(1) The employer must set out in writing the circumstances which lead the employer to contemplate dismissing the employee.

(2) The employer must send the statement, or a copy of it, to the employee and he must invite the employee to attend a meeting to discuss the matter.

(3) The meeting must take place before action is taken.

(4) The meeting must not take place unless the employer has informed the employee what the basis was for including, in the statement mentioned above, the grounds given in it, and the employee has had a reasonable opportunity to consider her response to that information.

24. None of the requirements specified in the last paragraph above were met in relation to the dismissal in this case. The failure to meet those requirements was wholly attributable to failures on the part of Mr Richard Morrow. Accordingly, as Mr Sharpe realistically recognised, this was an automatically unfair dismissal within the meaning of Article 130A(1) of the 1996 Order. According to Article 130A(1), an employee who is dismissed is to be regarded (for the purposes of the unfair dismissals legislation) as being unfairly dismissed if all of the following requirements exist:

(1) The statutory dismissal procedure applies in relation to that dismissal.

(2) That procedure has not been completed.

(3) The non-completion (of that procedure) is wholly or mainly attributable to failures on the part of the employer.

25. The defence of the respondents in respect of the unequal pay claim can be summarised as follows. According to the respondents, there was good reason for the inequality. In any event, anti-Catholic bias was not a factor in the decision to pay Miss Flanaghan and the claimant at unequal rates.

26. The respondents’ defences in respect of the various detrimental treatment allegations (against Miss Simpson) can be summarised as follows. Each instance of alleged mistreatment did not amount to detrimental treatment (within the meaning of Article 19 of the 1998 Order). Further, or in the alternative, the relevant act was not affected by anti-Catholic bias.

27. The defences of the respondents in relation to the dismissal-related accusations of discrimination can be summarised as follows. Unfortunately, it was necessary to dismiss the claimant because of the difficult economic circumstances which Morrows was facing at the time of her dismissal. Although the dismissal process was inadequately documented, the decision to dismiss was taken with great reluctance, and the claimant was the appropriate person to make redundant in all the circumstances. The dismissal was in no way affected by anti-Catholic bias. The decision was not in any way, or to any extent, an act of retaliation in respect of, or a reaction to, the September 2009 confrontation and/or the September 2009 complaint.

28. In the context of the victimisation discrimination claim (the claim that there was a discriminatory dismissal which constituted victimisation discrimination), the respondents also rely on the argument that, throughout the course of her September 2009 confrontation and her September 2009 meeting with Mrs Morrow:

(1) The claimant could not properly be regarded as having alleged that Mrs Simpson had contravened the 1998 Order;

(2) The claimant could not properly be regarded as having done anything by reference to the 1998 Order;

The sources of evidence

29. We received oral testimony from the claimant. On behalf of the respondent, we received oral testimony from the following:

(1) Mrs Simpson;

(2) Mrs Flanaghan;

(3) Mr Richard Morrow; and

(4) Mrs Jean Morrow.

We also saw two large bundles of documents (amounting altogether to more than 750 pages), along with some miscellaneous documents. We told the parties that we would not take account, for evidential purposes, of the content of any document within a bundle, unless that document had been specifically drawn to our attention by one or more of the parties.

The facts

30. In this paragraph, we set out findings of fact which are relevant to the issues which we have decided. In the interests of clarity, and with a view to minimising avoidable duplication, we have also set out additional findings of fact elsewhere in this Decision:

(1) The claimant was employed by Morrows from 12 February 2007 until 21 November 2009.

(2) She was employed as a part-time sales assistant in the Ladies Department of the Morrows’ Dungannon store.

(3) The Ladies Department in that store specialised in high quality, expensive priced womens’ clothing.

(4) At that time, the staffing of that Department consisted of its manager Mrs Roberta Simpson, the claimant (who was a part-time worker) and Mrs Audrey Flanaghan (who was also a part-time worker).

(5) In general, relationships among the staff of the Ladies Department were good, throughout most of the claimant’s period of employment. Latterly, the claimant began to be aggrieved by what she regarded as unfairnesses in relation to recognising, and paying for, the hours worked by her. The claimant strongly felt that she was not being paid for all the hours that she worked.

(6) However, her precise contractual entitlements, particularly regarding her entitlements to breaks, were something of a mystery, because she had never been given a written contract of employment. Accordingly, her entitlements had to be discerned mainly from consideration of past custom and practice within the shop.

(7) The claimant’s main ground of complaint was summarised in her claim form, in the following terms:

…. I was constantly working four hour shifts on non-contracted dates and many of these were amalgamated into one full day (i.e. 7½ hours) and paid for same. … from [January 2009] my tea break for [a non-contracted] 4 hour shift … was disallowed …

(8) So the claimant confronted Mrs Simpson on 5 September 2009 about the matters which were causing her upset. At the heart of the issues which the claimant then raised with Mrs Simpson were the issues which we have quoted, from the claim form, above.

(9) The claimant wanted to know what her entitlements were, regarding hours worked, and break entitlements. So she asked for a meeting with Mrs Morrow, soon after the September confrontation with Mrs Simpson. (The latter meeting took place on 8 September 2009). The claimant had arranged for her daughter to be present, so that her daughter would subsequently be available as a witness to what occurred during that meeting.

(10) During that meeting, she informed Mrs Morrow, in general terms, that she had been annoyed about the treatment meted out to her by Mrs Simpson, but that she had had a chat with Mrs Simpson, and was hopeful that matters would subsequently improve. She also asked Mrs Morrow for her written contract of employment, pretending that this was needed for tax purposes.

(11) Mrs Morrow, who is an experienced businesswoman, knew very well that you do not need a written contract of employment in order to deal with your PAYE affairs, in your role as a part-time sales assistant. She knew that the daughter had been brought along upon a pretext. She knew that the claimant was now beginning to assert her legal rights, regarding the notification and recording of her precise contractual entitlements.

(12) Mrs Simpson has been employed by Morrows for many years. She is very loyal to that family. They, in their turn, are very loyal to her. She has been a very effective manager of the Ladies Department.

(13) On 5 September 2009, the claimant complained to Mrs Simpson about Mrs Simpson’s treatment of herself. On 8 September 2009, the claimant had a conversation with Mrs Morrow, during which she mentioned the fact that she had raised issues about Mrs Simpson’s treatment of herself, and during which she, in effect, demanded that Morrows respect her legal entitlements regarding contractual documentation. Approximately two months later, she was informed by Richard Morrow that she was going to be made redundant.

The arguments

31. On 20 December 2010, there was a hearing for the purpose of considering the arguments of the parties.

32. Some days beforehand, at our request, the solicitors for the respondents had provided the claimant with a written version of their arguments in this case highlighting the main points which the respondents wish to make in the context of those arguments. (In this Decision, we refer to that document as “the respondents’ Submissions”). By 20 December, the claimant was able to provide a written document which highlighted the main elements of her own arguments. (In this Decision, we refer to that document as “the claimant’s Submission”).

33. The Submissions provide a permanent record of the main thrust of the arguments on each side of the case. In those circumstances, it is unnecessary to provide comprehensive details in respect of all of those arguments in this Decision. We have specifically referred to some of those arguments in the course of this Decision. However, we have carefully considered all of those arguments regardless of whether or not they have been highlighted within the decision.

Liability for unfair dismissal

34. A statutory dismissal procedure is prescribed, in respect of dismissals, in the Employment (Northern Ireland) Order 2003 (“the 2003 Order”). The detailed requirements of that procedure are set out in Chapter 1 of Part I of Schedule 1 of the 2003 Order. According to that Chapter:

(1) The employer must set out in writing the circumstances which lead the employer to contemplate dismissing the employee.

(2) The employer must send a statement or a copy of it to the employee and must invite the employee to attend a meeting to discuss the matter.

(3) That meeting must take place before any action is taken.

(4) The meeting must not take place unless the employer has informed the employee what the basis was for including, in the statement (the statement referred to at sub-paragraph (1) above), the ground given in it, and until the employee has had a reasonable opportunity to consider his response to that information.

35. On the basis of the undisputed facts in this case, it is quite clear that none of the requirements specified in the last paragraph above was met in this case. On the same basis, it is also clear that the employer was mainly or wholly responsible for those failures.

36. Article 130A(1) of the 1996 Order provides that a dismissal will be automatically unfair, for the purposes of the unfair dismissals legislation, if all of the following circumstances apply to a particular dismissal:

(1) The statutory dismissal procedure applies to it.

(2) That procedure has not been completed.

(3) The non-completion of the procedure is wholly attributable to failure by the employer to comply with its requirements.

37. In this case, on the basis of the undisputed facts, it is clear that all of those three circumstances apply to the dismissal in this case. First, the statutory dismissal procedures applied to this dismissal. Secondly, the first two “Steps” of that procedure were not completed. Thirdly, the non-completion of the procedure is wholly attributable to failure by Richard Morrow to comply with its requirements.

38. In his Submission, Mr Sharpe has drawn our attention to the provisions of Article 130A(2) of the Order. According to paragraph (2) of that Article: “… failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded … as by itself making the employer’s action unreasonable if the employer shows that he would have decided to dismiss the employee if he had followed the procedure.” However, the short answer to that point is that the provisions of paragraph (2) are “subject to” paragraph (1) of Article 130A. (In other words, an employer cannot take advantage of the defence potentially offered by Article 130A(2), if the dismissal is automatically unfair pursuant to Article 130A(1) of the 1996 Order; and paragraph (2) only provides a defence against an unfair dismissal claim in situations in which the employer has been not guilty of a breach of Article 130A(1) but has merely been guilty of “ordinary” procedural unfairness).

39. Against that background, and for those reasons, we are satisfied that this was an unfair dismissal.

Victimisation discrimination

40. According to the claimant, Richard Morrow’s decision to dismiss her was an act of victimisation discrimination.

41. The claimant is not asserting that she was dismissed because Richard Morrow knew or suspected that she intended to carry out a protected act.
Accordingly, the dismissal cannot be an act of victimisation discrimination unless, prior to the dismissal, the claimant had already carried out a “protected act”, in the sense in which that term is used in the context of victimisation discrimination.

42. The list of protected acts is set out in paragraph (5)(a) of Article 3 of the 1998 Order. Of the five acts listed there, the only acts which are apt to cover the situation contended for by the claimant, in this case, are acts (iii) and (iv), as listed there.

43. It is worth setting out (iii) in full. According to Article 3(5)(a)(iii), B carries out a protected act if B has:

“(iii) alleged that [the perpetrator of the alleged victimisation discrimination or any other person] has (whether or not the allegations so states) contravened [the 1998] Order ...”

44. Act (iv) is carried out if B has “otherwise done anything under or by reference to this Order in relation to A [the perpetrator of the alleged victimisation discrimination] or any other person…”.

45. According to the claimant, she carried out a protected act whenever she had her September 2008 confrontation with Ms Simpson, or when she complained about Mrs Simpson to Mrs Morrow.

46. However, for the following reasons, and against the following background, we have concluded that neither of those meetings involved any act which fell within the scope of acts (iii) or (iv).

47. The claimant is a Catholic. Mrs Simpson is a Protestant. Mrs Flanaghan is a Protestant. We are sure that, during the course of the September confrontation with Mrs Simpson, and again during the course of the September complaint to Mrs Morrow, the claimant explicitly asserted that Mrs Simpson had been treating her badly, and that she also, explicitly or by implication, asserted that Mrs Simpson had been favouring Mrs Flanaghan over herself.

48. However, we are also sure that the claimant’s assertions, both during the confrontation and during the complaint, did not explicitly or by implication involve an allegation that the claimant was being treated less favourably on the ground of her Catholic religion.

49. In particular, we do not accept that she stated, either during the confrontation or during the course of her subsequent complaint to Mrs Morrow, that she was being treated as a “second class citizen”. We are also satisfied that the word “discrimination” was never mentioned during the course of either encounter.

50. As Article 3(5)(a)(iii) explicitly states, there is no need for a person, (“A”), in order to to bring herself within the scope of (iii), to explicitly state that the relevant person (“B”) has contravened the 1998 Order. However, A cannot meet the requirements of (iii) merely by saying that she has been treated badly by B, even if A (like this claimant) is within a particular class which is protected under the 1998 Order, and the person complained of (B) is outside that class.

51. Instead, in order to come within the scope of (iii), there must be an explicit or implicit assertion, not merely that the claimant has been treated badly, but also that this bad treatment constituted less favourable treatment than was or would have been accorded to somebody not within her protected class, and also that a cause of this bad treatment was a relevant prohibited ground (in this instance, anti-Catholicism). General support for those conclusions is to be found in Waters v Metropolitan Police [1997] ICR 1073, at 1097, in which Waite LJ commented on the implications of Section 4(1)(d) of the Sex Discrimination Act 1975 (the equivalent of Article 3(5)(a)(iii) of the 1998 Order), in the following terms:

“The allegation relied on need not state explicitly that an act of discrimination has occurred – that is clear from the words in section 4(1)(d). All that is required is that the allegation relied on should have asserted acts capable of amounting in law to an act of discrimination by an employer within the terms of section 6(2)(v). The facts alleged by the complaint in this case were incapable in law of amounting to an act of discrimination by the Commissioner …

I would accordingly dismiss the sex discrimination appeal …”

52. We have already noted that Article 3(5)(a)(iv) is, potentially, broader in scope than (iii). In order to bring the September confrontation, or the September Morrow meeting, inside the scope of (iv), all the claimant would need to have done was to have acted “by reference to” the 1998 Order.

53. However we are satisfied that, during the course of her confrontation with Mrs Simpson, and during the course of her subsequent complaint to Mrs Morrow, the claimant did not so act. Instead, at both meetings, she presented her grievance as being only about favouritism, as distinct from being a grievance about religious bias. (It was only at a later stage, when her hand was forced because of Richard Morrow’s decision to dismiss her, that she raised the issue of anti-Catholic discrimination, for the first time).

54. The claimant did not make any contemporaneous note of her September 2009 confrontation with Mrs Simpson. However, in the letter of 20 November 2009 which she gave to Mrs Morrow as she was leaving the shop for the last time, she wrote in forthright terms. In the course of that letter, she stated the following:

“I wish to draw to your attention as a consequence of my employment being terminated a number of grievances which have arose during my employment with your company. From the commencement of my period of employment, I have thought that I was not fully accepted within the workforce. On a number of occasions, I detected favouritism being extended to the other part-time employee in the department”.

Later, during the course of that letter, the claimant commented as follows:

“There are numerous other examples of both preferential treatment given to the other part-time employee and unfair treatment to myself, which can be supplied if necessary. I raised these issues with your manageress in an attempt to broker a resolution to the problems and imagine my utter surprise when quite soon after this, without any response to my enquiry, I am suddenly told there is not enough work and I am to be laid off”.

55. The tenor and subsistence of the letter as a whole, and especially the quoted extracts, are more consistent with a situation in which the claimant had been merely complaining about bad treatment, which constituted favouritism (without implying that treatment was accorded on religious grounds), than a situation in which the claimant, either expressly or implicitly, had been accusing Mrs Simpson of having discriminatorily subjected her to detrimental treatment.

56. In her claim form in these proceedings (at paragraph 7), the claimant refers to her September confrontation with Mrs Simpson in the following terms:

“I finally confronted Mrs R Simpson (manageress) on 5/9/09 (as I did not know who to report the aforementioned grievances/discrimination) about the unfair and unequal treatment”.

57. Long after these proceedings had begun, the claimant wrote a note about the September meeting with Mrs Simpson, in the following terms:

“I had a very serious discussion with Roberta regarding unfair and unequal treatment by her to me. It was after she had went over the following week’s rota with me (while she was away on holiday on 7-12 September) and had told me that she was coming back at 12 noon on Saturday to let Audrey get away to her boat. Yet in the book she had marked Audrey in for a full day. In comparison to me I was marked in for … I also highlighted other examples of unfairness and treating me as 2^nd class, making me clean out rubbish etc from sales shop in my good clothes, the place was filthy dirty, she could have warned me to come prepared in suitable clothing/rubber gloves etc …. I would have to be better treated. As an equal to Audrey? …”

We think it is highly significant that this document, which purports to describe what happened during the September 2009 confrontation with Mrs Simpson, was not prepared at the time of that event, but was instead prepared a considerable number of months later when the present proceedings were already under way. In our view, the claimant’s professed recollection, as recorded in that note, to a large extent reflects what the claimant then wished to remember.

58. The claimant has not suggested that she explicitly or implicitly mentioned “unequal treatment” or being a “second class citizen” during the course of her verbal complaint to Mrs Morrow.

59. Having considered the oral testimony of the claimant, the contemporaneous documentation in relation to the matter, the oral testimony of Mrs Simpson and that of Mrs Morrow, we are satisfied that, during the September meeting with Mrs Simpson, the claimant did not say or imply that the allegedly less favourable treatment of herself, as compared with the treatment which Mrs Flanaghan received, was to any extent affected by religion (whatever her own religion, or the religion of Mrs Flanaghan). In particular, we are sure that the claimant did not state to Mrs Simpson that she was being treated as a second class citizen. Furthermore, we are satisfied that when, the claimant had her confrontation with Mrs Simpson, the claimant thought that she was engaging only in an industrial relations dispute; and we reject the suggestion that, at the time of the confrontation, she took the view that she was protesting about religious discrimination. (Her complaints of religious discrimination came later, and were greatly affected by what she considered to be the unfair retaliation of the Morrows, which involved the creation of what she considered to be a sham redundancy situation).

60. The definition of victimisation discrimination in the 1998 Order is similar to the definitions of victimisation discrimination in the sex discrimination legislation and in the race relations legislation. If a black worker is part of a two-man team, and if his team-mate is white, and if his supervisor is white, and if he is treated less favourably than his team-mate, and he complains about that treatment, his complaint does not become a complaint of racial discrimination merely because of its context. In other words, a complaint of favouritism, in such a situation, does not become a racial discrimination complaint, merely because all of the following conditions are met:

(1) The claimant belongs to a relevant protected class (black people), and;

(2) the alleged perpetrator does not belong to that protected class, and

(3) the comparator does not belong to that protected class; and

(4) the complaint is one of less favourable treatment (being the treatment meted out to the relevant claimant, as compared to the treatment which was accorded to his comparator).

The black worker’s complaint of favouritism will not become a complaint of contravention of the race relations legislation unless he, whether expressly or by implication, asserts, as part of the complaint, that favouritism has been carried out on racial grounds.

61. If we apply that example to the circumstances of the present case, the claimant’s complaint of less favourable treatment does not become a complaint of religious discrimination, either explicitly or implicitidly , merely because:

(1) The claimant is a Catholic;

(2) Mrs Simpson is a Protestant;

(3) Mrs Flanaghan is a Protestant and

(4) the claimant was complaining that Mrs Simpson had treated Mrs Flanaghan better than she had treated the claimant.

62. In the circumstances of this case, for the relevant complaint to become one of religious discrimination, more was needed. There had to be at least a clear implication that the claimant was alleging that religion (her own religion, religion, or Mrs Flanaghan’s religion) was a significant reason for the relevant differential treatment.

Religious discrimination

63. In this part of the Decision, we set out some facts relevant to the religious discrimination issues; we refer to some of the relevant arguments; we set out some legal principles which we consider to be relevant in the context of our determinations in relation to the religious discrimination claims; and we set out our conclusions on this part of the case.

64. At the beginning of the case, the claimant was asked to be precise about her contentions regarding her religious discrimination claims. It was pointed out to her that a Protestant could treat a Catholic less favourably either because that Protestant prefers Protestants or because he dislikes Catholics. In response, the claimant was emphatic that the reason for the discrimination here was that the perpetrators did not like Catholics, and that it was not a question of preferring Protestants. The problem, according to the claimant, was that the perpetrators hated Catholics.

65. Also at the beginning of the case, the claimant also made it clear that she was contending that, in each and every instance of alleged religious discrimination, the perpetrator was well aware of what he or she was doing. So this was not a case of unconscious or subconscious discrimination. Instead it was a case of overt and deliberate and insightful bias.

66. Those were two important clarifications. As a result of those clarifications, the evidence, on both sides of the case, was presented on the basis that the issue for the Tribunal, in the context of every complaint of religious discrimination in this case, was whether or not “conscious” anti-Catholic bias was a significant reason for the meting out of the relevant treatment.

67. It is unlawful to pay a Protestant more than what you pay a Catholic, if you do so because of anti-Catholic bias. (See Article 19(1)(b)(i) and (ii) of the 1998 Order). The effect of Article 19 (when read with Article 3) is to make it unlawful for an employer to discriminate, on the ground of anti-Catholic bias, against a person:

“(i) In the terms of employment which she affords him; or

(ii) In the way he affords him access to benefits or by refusing or deliberately omitting to afford him access to them ...”

68. It is also unlawful to discriminate against a person, on the ground of anti-Catholic bias, by subjecting her to detrimental treatment. (See Article 19(1)(b)(iii) of the 1998 Order).

69. It is also of course unlawful, under the 1998 Order, to dismiss somebody because of anti-Catholic bias. (That is the combined effect of Article 19(2)(iii) and Article 3 of the 1998 Order).

70. Our understanding of the implications of the legal principles, in the circumstances of this case, is as follows.

71. Each relevant act can be an act of religious discrimination, within the meaning of the 1998 Order, even if anti-Catholic bias was not the main reason for the conduct complained of, but the conduct will not constitute religious discrimination unless anti-Catholic bias was a significant reason for carrying out the relevant act.

72. As will be clear from what has been stated above, the position, under the 1998 Order, in the circumstances of this case, is as follows:

(1) It is not unlawful for a Protestant to pay a Catholic less than he pays a Protestant, unless religious bias was a significant reason for the differential treatment.

(2) It is not always unlawful, for a Protestant to subject a Catholic to detrimental treatment. It is only unlawful for a Protestant to subject a Catholic worker to detrimental treatment if he does so discriminatorily.

(3) It is not unlawful for a Protestant to dismiss a Catholic, even if he dismisses her unfairly, provided that the dismissal was not a discriminatory dismissal.

73. The expression “detriment” is not defined in the 1998 Order, but case law makes it clear that “a detriment” within the meaning of Article 19 of the 1998 Order will exist if, by reason of the act, or acts, complained of, a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work. (See Shamoon v Chief Constable of the RUC [2003] ICR 337, at paragraphs 34, 91 and 104 of the judgment). We of course accept that, in applying those criteria, it is appropriate to consider the issue from the point of view of the claimant. (See Shamoon at paragraph 105). However, an unjustified sense of grievance cannot amount to a detriment. (See Shamoon, at paragraph 35).

74. In the context of the religious discrimination aspect of this case, the provisions of Article 3(3) of the 1998 Order have to be borne in mind. Article 3(3) provides as follows:

“A comparison of the cases of persons with different religious belief or political opinions [in the context of an employee’s religious discrimination or political discrimination claim] must be such that the relevant circumstances in the one case are the same, or not materially different, in the other”.

The implication of Article 3(3) is that an actual statutory comparator will not be a valid statutory comparator, in the context of her religious discrimination claim, unless there are no important relevant differences between the circumstances of the claimant (at the time of the discrimination) on the one hand, and the circumstances of the actual comparator, on the other hand.

75. In this case, the claimant has constantly highlighted the alleged disparity between the treatment accorded to her on the one hand and the treatment accorded to Audrey Flanaghan on the other hand. However, if we were to treat Audrey Flanaghan, for the purposes of this case, as an actual statutory comparator, the claimant would run the risk of having her religious discrimination claim defeated on the purely technical ground, that Mrs Flanaghan, for some reason unforeseen by the claimant, was not a suitable statutory comparator.

76. Accordingly, without opposition from Mr Sharpe, we have treated Mrs Flanaghan only as an “evidential” comparator; and we have regarded the claimant as having cited a hypothetical comparator (and to have merely used the ways in which Mrs Flanaghan was treated as a strong indicator as to how a hypothetical comparator, who presumably would have circumstances which would be practically identical to the circumstances of the claimant, would have been treated: See Shamoon, at paragraph 81 of the judgment).

77. It will be helpful to summarise at this point in the Decision. In relation to any particular complaint of religious discrimination, in the circumstances of this case, the claimant cannot succeed unless (having had regard to any implications of the statutory provisions relating to the burden of proof), the Tribunal concludes, in favour of the claimant, in relation to both:

(1) That she was treated less favourably than the relevant perpetrator would have treated an appropriate hypothetical statutory comparator.

(2) That “conscious” anti-Catholic bias was a significant reason for the relevant differential treatment.

78. The decision of the House of Lords in Zafar v Glasgow City Council [1998] IRLR 36 reminds us that the “less favourable treatment” element of the religious discrimination definition cannot be satisfied merely by showing that the perpetrator has engaged in an unreasonable behaviour, because (as Lord Morison had explained when Zafar was being decided at Court of Session stage):

“It cannot be inferred let alone presumed, only from the fact that an employer has acted unreasonably towards one employee, that he would have acted reasonably if he had been dealing with another in the same circumstances.”

79. However, the unreasonableness of the treatment complained of is a factor which can been taken into account in deciding what inferences should be drawn, in the context of the second element of the definition of religious discrimination, which relates to the question of whether or not particular treatment was accorded on the relevant proscribed ground (which, in this instance, is anti-Catholic bias). In this general connection, see Bahl v Law Society [2004] IRLR 799, especially at paragraph 101 of the judgment.

80. When we turn to this second element in the definition of religious discrimination (the issue of whether or not the relevant treatment was accorded on the ground of religious belief), we remind ourselves that we regard the claimant as having cited a hypothetical comparator. The judgments in the House of Lords in Shamoon emphasise that, when a hypothetical comparator is cited, it is often helpful to focus attention on the reason for the relevant treatment. As Lord Nicholls commented at paragraph 11 of Shamoon:

“This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able avoid arid and confusing disputes about identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was this on the proscribed ground which is the foundation of the application? That would call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will usually be no difficulty in deciding whether the treatment, afforded to the claimant, on the proscribed ground, was less favourable than was or would have been afforded to others”.

81. The 1998 Order now has to be regarded as the legislation by which the United Kingdom has purported (in respect of Northern Ireland) to implement the requirements which were imposed upon the UK by the EU Framework Directive of 2000. Accordingly, the 1998 Order now has to be construed in light of the requirements of the 2000 Directive.

82. Article 38A of the 1998 Order contains special rules regarding the burden of proof in religious discrimination cases; that Article had to be enacted in order to comply with the requirements of the 2000 Directive in respect of the burden of proof.

83. Article 38A has counterparts, which are for practical purposes identical, in all of Northern Ireland’s other principal employment discrimination enactments. In their turn, all of those Northern Ireland provisions are, for practical purposes identical to special burden of proof provisions which are to be found in all of the main Great Britain employment discrimination enactments.

84. Article 38A is in the following terms:

“38A. Where on the hearing of a complaint under Article 38, 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 unlawful discrimination … against the complainant, or

(b) is by virtue of [provisions of the 1998 Order which deal with employer’s secondary liability, and which deal with the liability of “aiders and abettors”] to be treated as having committed such an act of discrimination … against the complainant,

the Tribunal shall 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”.

85. Article 38A has to be seen within the particular context of the particular claims which have been presented in the present proceedings. When that Article is seen in that context, it can be seen that the position is as follows:

(1) In relation to the religious discrimination allegations against Mrs Simpson, the burden of proof will shift, pursuant to Article 38, only if a “prima facie” case of religious discrimination is established. If the burden of proof does pass, then the claimant is entitled to succeed, in relation to the relevant claim of anti-Catholic religious discrimination, unless the respondents, or at least one of them, is able to prove that the relevant act either did not occur at all, or did not constitute detrimental treatment, or did not constitute less favourable treatment, or was not significantly affected by anti-Catholic bias.

(2) The same principles apply in the context of the claims of religious discrimination which relate to the alleged behaviour of Richard Morrow.

(3) In Article 38A, the phrase “… could, apart from this Article conclude…” means “a reasonable tribunal could properly conclude”. (See Madarassy v Nomura International plc [2007] IRLR 246, at paragraph 57 of the judgment.

(4) If Article 38A had never been enacted, in what circumstances could a Tribunal have properly concluded (in the absence of an adequate explanation from the respondent) that an act of relevant unlawful discrimination had been perpetrated. Prior to the enactment of Article 38A, a Tribunal could only properly so conclude, if a prima facie case of such discrimination had been established.

(5) Prior to the enactment of Article 38A, the principles of this aspect of the law were to be found in the judgment of Neill LJ in King v Great Britain-China Centre [1992] ICR 516. In that case, at pages 528 and 529, Neill LJ made the following comments:

“From these several authorities it is possible, I think, to extract the following principles and guidance. (1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers would be prepared to admit such discrimination even to themselves. In such cases the discrimination will not be ill-intentioned but will merely be based on an assumption that “her or she would not have fitted in”. (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive of equivocal reply to a questionnaire. (4) Although there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the Tribunal will look to the employer for an explanation. If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory, it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds. This is not a matter of law, but … “almost common sense”. (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities bearing in mind the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case”.

86. The five King v Great Britain-China Centre guidelines give an indicator of what it took to establish a prima facie case of unlawful employment discrimination. (In other words, those guidelines indicate the situations in which, prior to the enactment of Article 38A, a Tribunal could properly make a finding of unlawful religious discrimination).

87. However, those guidelines have to be read within the particular context of this case. Part of the context of this case is that the claimant has made two assertions. First, she has asserted that all of the relevant acts of alleged discrimination were acts of entirely conscious discrimination (as distinct from subconscious or unconscious discrimination). Secondly, she has alleged that all of the allegedly unlawful acts were carried out on the ground of anti-Catholic bias (as distinct from being carried out on the ground of pro-Protestant bias). Accordingly, the position is as follows:

(1) As Guideline 1 in King indicates, it is for the claimant, who complains of anti-Catholic discrimination, to make out her case. Thus, if the claimant does not establish a prima facie case of unlawful anti-Catholic discrimination in any instance, that aspect of the case must fail, even if the employer provides no adequate explanation for the relevant conduct.

(2) Guideline 2: It is important to bear in mind that it is unusual to find direct evidence of anti-Catholic discrimination. Few employers would be prepared to admit such discrimination. However, the discrimination alleged here is all entirely ill-intentioned, malicious, and overt. (The discrimination alleged here is not discrimination which, for example, was merely based on an assumption that the victim would not have fitted in).

(3) Guideline 3: The outcome of a case which is based on allegedly overt anti-Catholic discrimination usually depends on what inferences are proper for the Tribunal to draw from the primary facts found by the Tribunal. Those inferences can include, in appropriate cases, any inferences that it is just and equitable to draw, from an evasive or equivocal reply to queries (regardless of whether those queries are contained in a questionnaire, or are posed outside the context of a questionnaire).

(4) Significantly, as Guideline (4) of King indicates, there will be some cases where anti-Catholic bias clearly was not a reason for the act which constitutes the basis of a complaint. But Guideline (4) also indicates that there will be some other cases where a finding of less favourable treatment of a Catholic (as compared to the treatment which was accorded to a Protestant), and a finding of a difference in religion (between the alleged perpetrator and the alleged victim and/or between the victim and her chosen comparator) will point to the possibility that there has been less favourable treatment which was accorded to the alleged victim on the ground of anti-Catholic bias.

(5) Guideline 5: In deciding whether or not a prima facie case of unlawful anti-Catholic discrimination has been established, in relation to any particular act of alleged unlawful discrimination in this case, the Tribunal has to make findings as to the primary facts and draw such inferences as the Tribunal considers proper from those facts. In deciding whether or not a prima facie case has been established, the Tribunal must bear in mind the difficulties which face a person who complains of unlawful religious discrimination.

88. In Curley v Chief Constable of the Police Service of Northern Ireland [2009] NICA 8, the Northern Ireland Court of Appeal gave guidance in relation to the application of the Article 38A provisions, in the context of a complaint of religious discrimination. In that case, at paragraph 17 of the judgment, Coghlin LJ advised tribunals against adopting an “overmechanistic approach” to the task of applying the rules of proof which are set out in Article 38A.

89. Having set out those legal principles, we can now apply them to the claims of religious discrimination in this case.

90. The claimant complains that Mrs Simpson subjected her to anti-Catholic discriminatory detrimental treatment, because she did not allow her equal access to “samples”. (“Samples” were items of clothing which were provided to the shop by the manufacturers, as samples, and, consequentially, at relatively low prices). Having considered the oral testimony of the claimant, of Mrs Simpson and of Mrs Morrow, we are satisfied that the claimant was free to buy any samples which came into the shop, and that her access to those samples was in no way impeded. The reality is that the claimant was never refused permission to buy any sample which she asked to buy. Accordingly, this claim fails because it is not factually well-founded.

91. Another of the claimant’s complaints of anti-Catholic discriminatory detrimental treatment, against Mrs Simpson, is that, at Christmas 2008, she was asked to work on a Sunday, whereas Mrs Flanaghan was not asked to work on that Sunday. However, that allegation is not factually well-founded. Having considered the oral testimony of Mrs Flanaghan in these proceedings, we are satisfied that she, like the claimant, was asked to work on the Sunday before Christmas 2008. Accordingly, this claim fails because it is not factually well-founded.

92. The claimant complains that Mrs Flanaghan was allowed to accompany Mrs Simpson on two separate “training” trips to London, which were sponsored by Basler (a manufacturer of high quality women’s clothing), but she was not invited on either occasion. In our view, this was not anti-Catholic discrimination. The claimant could not complain about Mrs Flanaghan being chosen for the first of the two trips. She could appropriately complain about Mrs Flanaghan being chosen for the second training trip (given that Mrs Flanaghan had had the opportunity to attend on the first occasion). However, the second training trip took place in the Autumn of 2009. At that point, the claimant had already had her September confrontation with Mrs Simpson, and had already complained about that confrontation to Mrs Morrow. The obvious reason for the omission to choose her for the second training trip is that, by that time, she was earmarked for early dismissal. Incidentally, we do not accept that Mrs Simpson (who was identified by the claimant as the perpetrator of this particular act of alleged discrimination) had the final say as to who went on this trip. Instead, we are sure that, on that issue, Mrs Morrow was influential. Because the reason for the omission to choose the claimant (for the second trip) had nothing to do with her religion, this complaint has to be dismissed.

93. The claimant also accuses Mrs Simpson of subjecting her to anti-Catholic detrimental treatment in relation to holiday entitlements. According to the claimant, when Mrs Flanaghan wanted to book her holidays, there was never any difficulty. However, when she herself tried to book holidays, it was always a battle of wills, between herself and Mrs Simpson, with a view to being allowed holidays on the dates which she (the claimant) had chosen.

94. As the claimant herself admitted, the ultimate result, in relation to all, or nearly all of the holiday applications made by the claimant, was that they were successful. Perhaps the leave was not always given with very good grace, but it was always given when she wanted it.

95. Nevertheless, on the face of it, there was a difference of treatment between the way in which Mrs Flanaghan was treated in relation to holiday leave applications on the one hand, and the way in which the claimant was treated in relation to holiday leave applications in the other hand. However, we are satisfied that the reason for this difference of treatment was that Mrs Flanaghan usually wanted holidays at times of the year when the shop was less busy, whereas the claimant typically wanted leave, for family reasons, at busier times of the year. That difference prevents Mrs Flanaghan, on the holidays issue, from being an appropriate statutory comparator. Alternatively, (if Mrs Flanaghan is an appropriate statutory comparator in respect of the holidays issue), the respondent has proven that the differential treatment was in no way affected by anti-Catholic bias, because the reason was the fact that the claimant was usually asking for leave at busier times of the year. Against that background, and for those reasons, this complaint has to be dismissed.

96. The claimant told us about an incident which she remembered regarding four days of extra holidays which Mrs Flanaghan had inadvertently taken in respect of a leave year which ended soon after the commencement of the claimant’s employment. According to the claimant’s recollection, Mrs Flanaghan was very worried about that matter, but was ultimately told, by Mr Tom Morrow, that Morrows would be taking no action in relation to the matter. Therefore, she asserts that Mrs Flanaghan got four days extra leave, and that she herself would not have been allowed to keep four extra days of leave if the same situation had arisen in relation to herself.

97. In her evidence to us, Mrs Flanaghan denied all knowledge of any such incident. On balance, we accept the truthfulness of her testimony. The claimant had a clear recollection that such an incident had happened and we have found the claimant to be a generally truthful witness. However, Mrs Flanaghan was in the best position to know whether or not such an incident had occurred.

98. In any event, even if the incident did happen in the manner which the claimant has described, all that shows is that Morrows were being merciful, to an employee who had inadvertently, but substantially, overtaken her leave. The claimant was never in an analogous position to Mrs Flanaghan, regarding allegedly overtaken annual leave.

99. The claimant also complained that, on a particular occasion, Mrs Simpson subjected her to anti-Catholic discriminatory detrimental treatment, by instructing her to clean out filthy premises, when she had arrived for work in her normal sales assistant clothing. Having considered the testimony of the claimant and the testimony of Mrs Simpson, we prefer Mrs Simpson’s version of events. Although the claimant honestly considered the relevant premises to be “filthy”, what was involved was relatively light cleaning work, which could appropriately be done in the claimant’s sales assistant clothing. Accordingly, the relevant treatment did not amount to detrimental treatment, within the meaning of Article 19 of the 1998 Order. For that reason, this particular complaint of unlawful religious discrimination must be dismissed.

100. According to the claim form, Mrs Flanaghan’s strict contractual obligations, in respect of working for hours for which she was paid, were often waived, but on the other hand, none of the claimant’s equivalent contractual obligations (her obligations to work hours in respect of which she was paid) were waived. This differential treatment, according to the claimant, was the result of overt anti-Catholic bias. (In other words, Mrs Simpson insisted upon the claimant fulfilling the claimant’s full contractual obligations, in respect of hours worked, because Mrs Simpson is anti-Catholic).

101. The first point which has to be made about this particular allegation is that we do not accept that Mrs Simpson was the sole arbiter as to whether or not Mrs Flanaghan was allowed to go home early, or was allowed to come in late, while getting paid for her entire shift. We have no doubt that, if that situation was not to the satisfaction of the employer, Mrs Morrow would have intervened to prevent it happening.

102. According to Mrs Flanaghan, and according to Mrs Morrow and Richard Morrow, Mrs Flanaghan often worked beyond her contractual stipulated hours, and sought no pay in respect of that additional work. Therefore, according to the respondents, the leeway which Mrs Flanaghan was given, on many occasions, in relation to coming in late and in relation to going early, was leeway which justly took account of the many hours of unpaid work which Mrs Flanaghan had done for the respondents at other times.

103. We do have reservations about some aspects of the evidence which has been given to us by Mrs Flanaghan and by others on this point. However, in broad terms, we are satisfied about the following factual matters. Mrs Flanaghan worked a significant number of hours, on many occasions, without getting paid for those hours, and she never sought payment in respect of those hours. Although the claimant did occasionally work a few extra hours, for which she received no pay, the extent of the claimant’s unpaid work was very much smaller than the scale of the unpaid work carried out by Mrs Flanaghan.

104. Accordingly, the differential treatment of Mrs Flanaghan and the claimant, in relation to insistence upon the hours contracted for being worked, did not constitute
anti-Catholic discrimination, either because Mrs Flanaghan was not an appropriate statutory comparator (because of the substantially greater extent of her unpaid work) or because we are satisfied that anti-Catholic bias was not a reason for the differential (and are satisfied, instead, that the sole reason for the differential is the significant amount of unpaid work carried out for the company by Mrs Flanaghan, at other times).

105. In the claim form, the claimant did not complain about the fact that Mrs Flanaghan was paid more than she was paid, for doing broadly similar work. There was good reason for her not including such a claim in the claim form. She didn’t know that there was such a differential, until she was provided with certain documentation, in the course of the discovery process which was carried out in the course of these proceedings. The respondent accepted that the claimant should have leave to amend her claim form, so as to include a claim of anti-Catholic religious discrimination (against Mr Richard Morrow) in respect of the persistent pay differentials between the claimant on the one hand and Mrs Flanaghan on the other hand; we did grant the claimant leave to amend her claim form to that effect.

106. There were no important differences between the work which the claimant did and the work which Mrs Flanaghan did. However, from the beginning of her employment, Mrs Flanaghan was paid 50p per hour more than the hourly rate at which the claimant was paid throughout the claimant’s period of employment. From August 2008 until the date on which the claimant’s employment came to an end, Mrs Flanaghan was paid £1.50 per hour more than the claimant.

107. According to the respondents, those differentials were the results of two factors. First, Mrs Flanaghan lives in Armagh, whereas the claimant lives in Dungannon, so Mrs Flanaghan had farther to come. Secondly, Mrs Flanaghan’s previous experience (her experience before coming to work for the Morrows) was better than the claimant’s. We reject both of those attempted explanations. First, the distance a person has to travel to work is of no significance in determining whether they can fairly be paid the amount of money which they are in fact paid. Secondly, we see no important differences between the experience which the claimant brought to the workplace when she was first employed, and the experience which Mrs Flanaghan had brought to that workplace when she had first joined the employment of the company.

108. It is grossly unfair for an employer to pay two women significantly different rates of pay, for carrying out broadly the same work, in circumstances where their previous experience is also broadly similar. The claimant is a Catholic. Richard Morrow is a Protestant. Mrs Flanaghan is also a Protestant.

109. Does the combination of factors identified in the last paragraph suffice to constitute a prima facie case that the pay differentials were affected, to a significant extent, by deliberate and conscious anti-Catholic bias on the part of Richard Morrow?

110. On balance, we are convinced that, in the circumstances of this case, those factors do not constitute prima facie evidence of such discrimination. We have made that determination against the following background and for the following reasons.

111. There is a plausible “non-discriminatory” explanation for the differential, which is as follows. First, Mrs Flanaghan did not accept the hourly rate which was initially offered by the Morrows, but instead negotiated for a high rate. (On the other hand, the claimant did accept the hourly rate which was initially proposed to her, which was the same as the hourly rate which had been initially proposed to Mrs Flanaghan). Secondly, Mrs Flanaghan asked for a pay rise, just prior to the time when she was given one, whereas the claimant never asked for a pay rise. Accordingly, there is scope for the theory that the differentials (between the wages which Mrs Flanaghan received on the one hand, and the wages which the claimant received on the other hand), are another aspect of the outworkings of this enterprises general practice of doing as little, in terms of providing or protecting worker’s entitlements as they think they can get away with.

112. One clear and blatant example of that general practice is the consistent failure of Morrows, over many years, to comply with its legal obligations to provide employees with written particulars of their contractual entitlements. That failure is not a mere technical failure. If an employee can see, in black and white, what her entitlements are, she can confidently invoke those entitlements, with minimal fuss, and with minimal scope for the type of arid and complex debate, about her precise entitlements, which has taken place between the parties during the course of this litigation.

113. In deciding that there was no prima facie case that the relevant pay differential (the pay differentials between what was paid to the claimant on the one hand and what was paid to Mrs Flanaghan on the other hand) were in no way affected by conscious anti-Catholic bias, we have not lost sight of the fact that Morrows paid two seamstresses, one Protestant and the other Catholic, who had broadly similar experience, at different rates of pay, over a lengthy period, and that the Protestant was being paid approximately 5% more than the Catholic. Perhaps the seamstresses’ differentials might have helped to establish a prima facie case of
subconscious or conscious pro-Protestant bias. However, it seems to us that those differentials provide very limited assistance to this claimant, in seeking to establish a prima facie case that the differentials between her own pay, and that of Mrs Flanaghan, was consciously affected by anti-Catholic bias.

114. Against that background, and for those reasons, we have decided that the pay differentials did not constitute unlawful religious discrimination.

115. According to the claimant’s claim form, she was subjected to anti-Catholic detrimental treatment by Mrs Simpson because she was “often degraded in public about alleged mistakes on the shop floor…”.

116. In her evidence in these proceedings, the claimant focused on two instances when, according to the claimant, Mrs Simpson spoke to her in an irritable manner. We are satisfied that, on both of those two occasions, Mrs Simpson did have reason to express some dissatisfaction about what the claimant was doing. Furthermore, on one of those occasions, as the claimant accepts, the remarks were made at a time when Mrs Simpson was upset because she was encountering problems with ongoing dental treatment.

117. We have no doubt that, on both occasions Mrs Simpson did speak to the claimant in a rather irritable manner. However, we see nothing particularly unusual about a situation in which a line manager, on two separate occasions, speaks to her subordinate in an irritable tone, within the context of an employment relationship between the two people, which lasts for a lengthy period.

118. Accordingly, these two complaints fail, either because the treatment in question did not constitute detrimental treatment (within the meaning of Article 19 of the 1998 Order) or because we are satisfied that a Protestant, in analogous circumstances, would have been treated in exactly the same way.

119. We are satisfied that Richard Morrow does not have any sectarian aversion to Catholics. We are so satisfied, against the following background and for the following reasons.

120. First, Richard Morrow denied having any such views, and when he spoke to us about this aspect of the case, he spoke with real feeling and, in our view, in a genuine manner. (His evidence about a number of important matters (regarding the reasons for, and the circumstances of, the claimant’s dismissal) was untruthful; we have noted this, in arriving at our overall conclusions regarding the anti-Catholic bias issue). Secondly, from the time the claimant knew that she was going to be sacked, she has been very diligent in identifying any matter, relating to her employment, which would show detrimental sectarian treatment on the part of the Morrows. However, despite that diligence, she has been able to come up with no incident during which any member of the Morrow family spoke in an inappropriate manner, which would indicate anti-Catholic bias. Thirdly, we note that the Morrow family circle includes some Catholics. Finally, we note that the Morrows had a practice of sending Mass Cards to Catholic friends who were bereaved. (The claimant says that they did so because they valued Catholic custom. However, if self-interest was the reason for sending the cards, one would expect people who had anti-Catholic views to content themselves with sending sympathy cards.)

121. We are satisfied that Mrs Simpson is not affected by anti-Catholic bias. We are so satisfied, against the following background and for the following reasons.

122. First, as already indicated above, from the time the claimant knew that she was going to be sacked, the claimant has been very diligent in identifying any detrimental treatment, on the part of Mrs Simpson, which could be regarded as being affected by anti-Catholic bias. However, it is notable that, in respect of a lengthy period of employment, she has been unable to identify any sectarian slurs, or inappropriate remarks, on the part of Mrs Simpson. The claimant drew our attention to a remark which Mrs Simpson made, on Saturday, 2 May 2009, when a GAA parade was going through the town. We accept that, on that occasion, Mrs Simpson remarked to the claimant that she was surprised that the parade had been allowed to go down the town on a Saturday, which was the busiest day of the week. We do not regard that remark as being anti-Catholic, or even anti-GAA. Instead, Mrs Simpson was merely expressing a reasonable opinion, in temperate terms. In our view, many Catholics, and some GAA supporters, might well have made such a remark. Secondly, we accept that Mrs Simpson has many longstanding Catholic friends, and that, during one recent winter, she attended exercise classes, on a weekly basis, in a Catholic parochial hall. Thirdly, we are satisfied that Mrs Simpson’s evidence on the anti-Catholic issue was genuine and heartfelt; she strenuously denied having any anti-Catholic bias.

123. For the sake of completeness, we must make it clear that we are satisfied that the claimant’s dismissal was not affected by any anti-Catholic bias. As will be seen below, we are satisfied that she was dismissed because she had had the September confrontation with Mrs Simpson, and had subsequently complained about Mrs Simpson to Mrs Morrow, and because she had asked Mrs Morrow, on that occasion, for her contract. We have no doubt that she was dismissed because of those matters. We also have no doubt that any Protestant who was complaining about Mrs Simpson, or who was asserting her rights in a similar way, would have been dealt with in exactly the same fashion.

124. As Mr Sharpe has pointed out in the course of his Submission, there are time-limit issues in respect of some of the claimant’s complaints of detrimental treatment, because they relate to events which occurred long before the commencement of the present proceedings, and they therefore fall outside the primary time-limit set out in the 1998 Order (which is three months, in most situations). However, in our view, the time lapse has not substantially diminished the ability of the respondents to defend themselves against those allegations. For that reason, we came to the conclusion that it was just and equitable, in each relevant instance, to entertain the relevant claims, notwithstanding the failure to present them in a timely manner.

125. In relation to each particular complaint of religious discrimination, we have of course taken full account of those findings of fact and factual conclusions which we have highlighted in the context of that particular complaint. However, in that context, we have also taken account of the following:

(1) All of the findings of facts which we have made in this case;

(2) our conclusions on the question of alleged anti-Catholic bias on the part of Mrs Simpson (in instances in which Mrs Simpson has been named as the perpetrator);

(3) and our conclusions in relation to allegations of anti-Catholic bias on the part of Richard Morrow (in those instances in which Mr Morrow has been named as the perpetrator).

The amount of compensation for unfair dismissal

126. In this part of the Decision, we address the issues which arise in the context of unfair dismissal compensation.

127. The claimant was paid a redundancy payment. Against that background, both parties have agreed that the claimant is not entitled to a basic award. Therefore the compensation issues arise only in relation to the amount of any compensatory award which is due to her under the unfair dismissals legislation.

128. In arriving at our determinations in respect of those issues, we have obtained considerable assistance from the various schedules of loss which the parties have prepared.

The issues in relation to the compensatory award

129. The issues in respect of the compensatory award can be summarised as follows:-

(1) What is the amount of the claimant’s loss, and has she failed to mitigate that loss?

(2) Should there be a “Polkey” reduction from any compensatory award?

(3) Should any compensatory award be subject to an uplift, pursuant to the Employment (Northern Ireland) Order 2003?

(4) Should an award be made to the claimant, as part of her compensatory award, pursuant to Article 27 of the Employment (Northern Ireland) Order 2003 (“the 2003 Order”) because of the failure of the respondent to provide her with a statement of employment particulars and, if so, should this be an award of two weeks pay or of four weeks pay?

The amount of the claimant’s recoverable loss

130. The claimant was out of work from 22 November 2009 until 27 March 2010. The parties are agreed that, during that period, her total loss amounted to £2,748.

131. With effect from 28 March 2010, until the present day, the claimant has been employed in another Dungannon clothes shop. Originally, she was earning £87.30 per week in that new employment. However, with effect from 28 June 2010, her hours were reduced, because of the economic climate.

132. It is agreed between the parties that the difference between the amount which the claimant would actually have been paid while employed with Morrows and the amount which she earned during her new employment, in respect of the period from 28 March 2010 until 25 June 2010, was £784.

133. It was also agreed between the parties that the difference between the claimant’s actual earnings with Morrows and her earnings with the new employer, in respect of the period from 28 June 2010 until 28 October 2010, was £1,549.

134. Accordingly, subject to any failure to mitigate loss, and subject also to any Polkey deduction, the claimant’s loss in respect of the period up to 28 October 2010 was £5,081. (The sum of £2,748, £784, and £1,549.)

135. The respondents assert that the claimant has failed to mitigate her loss. However, we have concluded that this assertion is not well-founded. We have arrived at that conclusion against the following background and for the following reasons.

136. The claimant obtained new employment within a relatively short space of time. Although her hours were cut at the end of June 2010, that is not her fault. Instead, it is an unfortunate result of the current economic difficulties. In light of those difficulties, and in view of the fact that part-time work in the Dungannon area is difficult to get, it was reasonable of the claimant to continue in her new employment, and not to search for a new job at that point.

137. In our view, because of the current economic difficulties, and because of the fact that the claimant would find it difficult to obtain another job in the Dungannon area on a part-time basis (especially in view of the acrimonious circumstances in which her employment with Morrows came to an end), it will continue to be appropriate for the claimant to continue in her employment with the current new employer, in the medium term, notwithstanding the reduction in hours.

138. In correspondence which was sent to the tribunal by the claimant, after the hearing had ended, it has been asserted that the claimant will lose a specified amount, in terms of state pension, because her earnings with the new employer (in contrast to the amount of earnings with Morrows) are so low that National Insurance contributions do not have to be paid. Our attention has not been drawn to any legal authority which would oblige or entitle us to take account of any such loss in calculating the amount of the compensatory award. In any event, the amount of any such loss was not proven to us, through the presentation of evidence, at any point during the hearing. Accordingly, we leave any such loss out of account in calculating the amount of the compensatory award.

139. A lengthy period has now elapsed since the date when the claimant was dismissed. In the Dungannon area, obtaining well-paid new employment, on a part-basis, is relatively difficult, especially in view of the current economic climate.

140. Having weighed all those factors, we consider that it is appropriate to allow a period of 26 weeks in respect of loss of earnings during the period beginning on 29 October 2010. The amount of that future loss is £1,889. That is the difference between the amount of earnings which the claimant would have actually received in respect of that period from Morrows (£3,969), and the amount which she has, and probably will, receive from her current employer (£2,080).

141. As already stated above, we have calculated that the claimant’s recoverable loss in respect of the period up to 28 October 2010 was £5,081. The figure in respect of “future loss” is £1,889. The sum of those amounts is £6,970.

142. The claimant is entitled to sum of £250 in respect of loss of statutory rights.

143. Accordingly, there is a running total, thus far, of £7,220 (£6,970 plus £250).

Should there be a “Polkey” reduction?

144. Article 157 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) makes provision in respect of the calculation of a compensatory award in an unfair dismissal case. Article 157(1) of the 1996 Order provides as follows:-

“(1) Subject to [certain provisions of the 1996 Order], the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer.”

145. The well-known House of Lords decision in Polkey v Dayton Services is authority for the proposition that, in deciding on the amount of compensation which is “just and equitable” for the purposes of Article 157(1), full account has to be taken of the chance that the claimant could and would in any event have been fairly dismissed, if the particular unfair dismissal (the unfair dismissal which is actually the subject of the relevant tribunal proceedings) had not occurred.

146. In the circumstances of the present case, in considering the Polkey issue, two questions have to be answered: First, if this dismissal had been free of any procedural defects, would a decision to dismiss the claimant have been within the range of reasonable responses? Secondly, would the employer have decided to dismiss in that situation?

147. In this case, we are satisfied that the claimant was not dismissed by reason of redundancy. Instead, she was dismissed only because she had had her September confrontation with Mrs Simpson and because of what she said and did during the subsequent September meeting with Mrs Morrow. (She was dismissed because Richard Morrow thought she was a trouble-maker, and because she had complained about Mrs Simpson).

148. On the question of whether or not the claimant could fairly have been dismissed for redundancy at the relevant time, and in relation to the question of whether or not the claimant would have been at risk of redundancy at some future point, our only source of information is Richard Morrow. However, in respect of those issues, he has shown himself to be a witness unworthy of belief. Therefore, we have no adequate basis upon which we could make a Polkey reduction.

149. In deciding that the claimant was dismissed for the reasons which we have set out above, we have taken particular account of the following matters:

(1) This was one of only two redundancies which ever occurred during the lengthy period in which Morrows has been in business. However, during the period which elapsed between the date on which she was told she was being made redundant and the date on which that redundancy took effect, nobody approached the claimant, or expressed regret. No good-luck card was given to her, no parting gift was given to her, and nobody asked her about her future employment prospects.

(2) According to Richard Morrow, throughout the period from September until the date when the claimant was told of her redundancy, he did not know, and had not been told, of the confrontation with Mrs Simpson or of the subsequent complaint (to Mrs Morrow). That is unbelievable.

(3) He asserted that he had not discussed the possibility of redundancy, prior to the redundancy announcement to the claimant in October, either with Mrs Morrow (who had special responsibility in relation to the oversight of the Ladies Department), or with Mrs Simpson, who was that Department’s manager. Again, that is unbelievable.

(4) Mr Morrow’s oral testimony to us, in respect of the economic background to the alleged need to make redundancies in the Ladies Department was vague and unconvincing. In particular, we noted that he had not kept any written records of the calculations which had led him to the alleged conclusion both that a redundancy was necessary, and that such a redundancy could most appropriately be made within the Ladies Department.

Uplift?

150. The effect of Article 17 of the Employment (Northern Ireland) Order 2003 (“the 2003 Order”) can be summarised as follows: As a general rule, if the statutory dismissals procedure was not completed solely because of a failure on the part of the employer, a tribunal is under an obligation to increase any compensatory award in unfair dismissal proceedings by between 10% and 50%.

151. That general rule is subject to an exception. The exception is provided for at paragraph (4) of Article 17, which provides that the general duty does not apply if there are exceptional circumstances which would make an increase of that percentage unjust or inequitable. We are satisfied that no such exceptional circumstances exist in the circumstances of this case: See below.

152. We are satisfied that a percentage uplift of 33% is appropriate in the circumstances of this case.

153. Steps 1 and 2 of the statutory dismissals procedure (relating to advance warning of the reasons for the contemplated dismissal, and relating to an initial internal hearing in respect of the contemplated dismissal at a time when no decision has as yet been made) were not met. The full requirements of Step 3 of the procedure were met; however, by that point, Richard Morrow (the person within the firm who owned the overwhelming majority of the shares within the firm) had already committed himself to the proposition that the claimant should be dismissed. There was no good reason for the failure to comply with the requirements of the statutory procedure. Morrows is a substantial firm. Even the most innocent and ignorant employer would know that employment law will not tolerate a situation in which an employee is merely told that she is being made redundant, without any earlier discussion with her, and without any earlier efforts being made to consider what the relevant employee might have to say about the contemplated dismissal. However, as Mr Sharpe pointed out in his Submission (at paragraph 42), an uplift must bear an appropriate relationship to the amount of general compensation and it must not be disproportionate.

154. Against that background, and for those reasons, we have decided that an uplift of 33% is appropriate.

155. This uplift (the Article 17 uplift) is applied prior to any Article 27 uplift: see Article 17(5) of the 2003 Order.

156. Accordingly, the amount of compensation which we have specified above (£7,220) must be uplifted by 33%, so that it will amount to £9,627.

The Article 27 claim

157. Article 33(1) of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) requires an employer to provide its employee with a written statement of employment particulars.

158. That was never done in this case, despite the claimant’s lengthy period of employment with the Morrows, and despite the fact that she protested about that matter in the course of her September meeting with Mrs Morrow. Accordingly, we are satisfied that, when the present proceedings were begun, the respondent was in breach of its Article 33 duty to the claimant.

159. Article 27 of the Employment (Northern Ireland) Order 2003 (“the 2003 Order”) applies to unfair dismissal proceedings.

160. The effect of paragraph (3) of Article 27 can be summarised as follows: If, in proceedings for unfair dismissal, an industrial tribunal makes an award to the employee in respect of unfair dismissal and, when the proceedings were
begun, the employer was in breach of its duty to the employee under Article 33(1) of the 1996 Order, the tribunal should, as a general rule, make an award of “the minimum amount” and it may (if it considers it to be just and equitable in all the circumstances to do so), award “the higher amount”.

161. That general rule does not apply if there are exceptional circumstances which would make an Article 27 award (or increase) unjust and inequitable.

162. In this case, there were no exceptional circumstances which would make an Article 27 award unjust or inequitable. The respondent knew very well that the claimant was entitled to receive written particulars of employment. The respondent failed to provide them, even at a late stage of her period of employment, and even in the face of the claimant’s demands to be provided with such particulars. Morrows is a substantial firm, which has been in business for a lengthy period. We are sure that the failure to provide written particulars was the result of a conscious choice, as distinct from inadvertence. It suited this firm, very well, to have employees in ignorance as to the precise extent of their legal entitlements.

163. Against that background, and for those reasons, we have decided that it is just and equitable, in all of the circumstances to award the “higher amount” (of four weeks pay), instead of the “lower amount” (of two weeks pay), in respect of the Article 27 breach.

164. At the time of the claimant’s dismissal, her gross weekly pay was £152.67. Accordingly, the claimant is entitled to an additional amount of £611, as part of her compensatory award.

Summary

165. Therefore, the claimant’s entire compensatory award amounts to £10,238.

The course of the proceedings

166. The total hearing time amounted to 8.5 days. It is unfortunate that the hearing lasted so long. However, there were a number of avoidable factors which were the main reasons for that lengthy duration.

167. First, the claimant was determined to pursue all of her various claims of detrimental treatment, and was resistant to all attempts to encourage her to abandon some of her peripheral issues (so as to focus on her key complaints).

168. Secondly, many of the claimant’s complaints related to matters of detail regarding the hours which she had actually worked and the hours which Mrs Flanaghan had actually worked, and regarding their respective contractual entitlements. Because there was no written contract, either in relation to the claimant or in respect of Mrs Flanaghan, the length of time which had to be devoted to those issues was much greater than it would have been if there had been written contracts.

169. Thirdly, a significant amount of oral testimony, which was presented on the respondent’s side of the case, was either untruthful or was lacking in candour. In particular, if Richard Morrow had been honest in respect of the evidence which was provided to the tribunal about the reasons for, and the circumstances of, the dismissal, the main hearing of these proceedings could have been very much shorter.

Recoupment

170. The Recoupment Regulations apply. The prescribed period was the period from 22 November 2009 until 28 February 2011. The prescribed amount was £6,240. The amount by which the amount of the unfair dismissal award exceeds the prescribed amount is £3,998.

Interest

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

Chairman:

Date and place of hearing: 25-29 October 2010; 22, 24-25 November 2010; and

20 December 2010.

Date decision record ed in register and issued to parties:

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	Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Hughes v Tom Morrow and Company Limited [2010] NIFET 00025_10FET (24 March 2011) URL: http://www.bailii.org/nie/cases/NIFET/2011/00025_10FET.html Cite as: [2010] NIFET 00025_10FET, [2010] NIFET 25_10FET

Fair Employment Tribunal Northern Ireland Decisions