Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    1843/10

 

CLAIMANT:                          Brigid Moore

 

RESPONDENTS:               1.         Adman Publishing Ltd

                                                2.         Henry Davidson

 

 

DECISION

 

The unanimous decision of the tribunal is that:-

 

(1)       The claimant’s claim of sexual harassment is not made out and is dismissed.

 

(2)       The tribunal has no jurisdiction in relation to the claim of constructive dismissal as the claimant did not meet the qualifying service requirement of one year’s continuous employment.  That claim is dismissed.

 

(3)       The title of these proceedings is amended to that set out above to reflect the proper names of the respondents.

 

 

 

Constitution of Tribunal:

 

Chairman:                            Mrs Margaret Watson

 

Members:                             Mrs Una Short

                                                Mr Brian McAnoy

 

 

Appearances:

 

The claimant presented her own claim.

 

The respondent did not attend.  His accountant, Mr Gollogly, appeared but did not take part in the proceedings.

 

 

Detail of Claim

 

1.         The claimant claimed that she had been constructively dismissed from her employment with the respondents.  She claimed that her employment conditions were intolerable on the grounds that the second respondent discriminated against her because he perceived her to be a lesbian.  The second respondent had also bullied and harassed the claimant and called her a ‘druggy’.  The claimant also claimed that she was owed £151.50 in unpaid wages.  The claimant gave evidence and provided papers to the tribunal at the hearing and subsequently by post which were inadmissible.

Findings of Fact

 

2.         The claimant is aged 23 and she is studying at university.  She began working for the first respondent each Friday as an unpaid journalism intern in or about April 2010.  There were two other unpaid interns there, Catherine O’Neill who sold advertising space, (possibly on a commission basis) and another male journalism intern whose name the claimant did not know.  Colm O’Brionn worked there
full-time as a Journalist and apparently supervised the others.

 

3.         Even though he was in charge of this enterprise, the claimant did not meet the second respondent until about June 2010 when he telephoned her and invited her to attend for an interview for a Sales Assistant position.

 

4.         At that interview, the second respondent asked the claimant about her family and her boyfriend.  When she told him that she did not have a boyfriend, the second respondent said, “I hope you are not one of those gays.”  The claimant told him that she did not have time for boyfriends.  They agreed that the claimant would continue to work as an intern on Fridays but that she would work the other four days for £150.00 per week.  The claimant presumed this was the net wage after deductions but this was not specified.  Commission was also discussed but not specified or agreed.

 

5.         The claimant’s employment as a Sales Assistant began on Monday, 14 June 2010 and ended on 28 June 2010.  During the two weeks of her employment, the second respondent appeared ‘abrupt and aggressive’ to the claimant but, at one stage, he asked her to consider giving up university and working full-time for him which she refused.  The claimant noted that the second respondent had a joking manner with Catherine O’Neill with whom she was good friends.

 

6.         On one occasion after a telephone conversation, the second respondent said to those in the office that he believed the man to whom he had been speaking was homosexual and he expressed his dislike for gay people.  Another time, he told Catherine O’Neill that the claimant was a lesbian.  When the claimant denied this he said that she had told him that at her interview.

 

7.         On or about Thursday, 24 June, the second respondent asked if any of them was going to the Oxygen festival.  When the claimant said she was going, he said that she must be a ‘druggy’ as she would have no interest in the males who were attending.  The claimant said she felt uncomfortable and that she was being bullied into leaving at this stage.

 

8.         The next day, the second respondent said that even though it was Friday, the claimant was to continue in sales.  The claimant agreed but pointed out that she should be paid for the extra day’s work and the second respondent agreed.  Later that day, the claimant telephoned the second respondent at his home to remind him that she was due to be paid that day for her work to date and that she expected to receive the £300.00 plus payment for that day.  The second respondent agreed to leave the cheque at the office that evening.  However he rang later and said he could not come that day but would leave it for Monday morning.

 

9.         On the Monday morning, the cheque that had been left for the claimant was for £240.00.  The claimant asked Catherine O’Brien to tell the second respondent that she had expected to receive £300.00 plus Friday’s pay.  The claimant told the tribunal that she then left because she “could not face working there if he was not going to stick to the agreement on pay.”

 

10.       After several attempts, the claimant spoke by telephone to the second respondent later that day and told him that she was making a verbal complaint under the grievance procedure.  The second respondent did not accept that the claimant was owed any more money.  The claimant informed him that she would take a case to an Industrial Tribunal as he had not stuck to his end of the bargain.

 

11.       On Tuesday, 29 June 2010, the claimant called at the office and left a letter of resignation.  This stated that the claimant found her working conditions intolerable in that the second respondent had:-

 

            (i)         discriminated against her repeatedly and openly calling her a lesbian in front of other staff;

 

            (ii)        bullied and harassed her by calling her a ‘druggy’ in front of colleagues; and

 

            (iii)       failed to pay her agreed wages which was unacceptable as it is below the national minimum wage of £5.80 per hour.

 

12.       The second respondent has not paid any further money to the claimant despite having had opportunity to do so.

 

 

Relevant Legal Provisions

 

13.       Constructive dismissal is defined at Article 127(1)(c) of the Employment Rights (Northern Ireland) Order 1996 as occurring when “the employee terminates the contract under which he is employed …  in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct”.  However this provision does not apply to employees who have not been in continuous employment for at least one year.  (Article 140 ERO).  Since the claimant was employed for two weeks, she does not meet the qualifying criterion and the tribunal has no jurisdiction in this element of the claim which is dismissed.

 

14.       The claimant had also made allegations of sexual harassment and bullying by the second respondent.  Under Article 6A (1) of the Sex Discrimination (Northern Ireland) Order 1976 (as amended), a person subjects a woman to harassment if:-

 

            a.         on the ground of her sex, he engages in unwanted conduct that has the purpose or effect:-

 

                        (i)         of violating her dignity; or

 

                        (ii)        of creating an intimidating, hostile, degrading, humiliating or offensive environment for her.

 

            b.         he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect:-

 

                        (i)         of violating her dignity; or

 

                        (ii)        of creating an intimidating, hostile, degrading, humiliating or offensive environment for her.

 

            Conduct shall be regarded as having the effect mentioned in paragraph (1) (a) or (b) only if, having regard to all the circumstances, including in particular the perception of the woman, it should reasonably be considered as having that effect.

 

15.       The Employment Appeal Tribunal in the case of Richmond Pharmacology Ltd  v  Dhaliwal [2009] IRLR336 advised tribunals that when considering harassment claims, they should focus on three elements:-

 

            (1)       unwanted conduct;

 

            (2)       having the purpose or effect of either;

 

                        (i)         violating the claimant’s dignity; or

 

                        (ii)        creating an adverse environment for her; or

 

            (3)       on the prohibited ground [in this case, sexual orientation] tribunals were advised that there would often be overlap between these elements, each factor should ideally be addressed separately.

 

16.       In a later case, Nazir and Aslam  v  Asim and Nottingham Black Partnership UKEAT/0332/09, advised that when considering these elements, tribunals should also bear in mind the context of the conduct which is alleged to have been perpetrated on that ground.  “That context may in fact point strongly towards or against a conclusion that it was related to any protected characteristic …”

 

17.       In Dhaliwal, the EAT made the point that the words “purpose or effect” in element (2) above, had a subjective element so that even if a tribunal consider that the conduct in question has had the prescribed effect, it must also be reasonable that it did so.  This provides for situations where claimants may show an unreasonable proneness to take offence.  This was expressed as follows:-

 

            “Not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity.  Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended.  While it is very important that employers and tribunals are sensitive to the hurt that can be caused by racially offensive comments or conduct… it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”

 

 

Tribunal’s Determination

 

18.       The tribunal considered the three elements above and find that the behaviour of the second respondent to the claimant was inappropriate.  We also find that the claimant felt uncomfortable when he asked her if she was gay and called her a lesbian.  However, the tribunal did not accept that the behaviour complained of violated her dignity or that an intimidating, hostile, degrading, humiliating, or offensive environment was thereby created for her.  These are very serious matters of complaint and the tribunal found that it was not reasonable in all the circumstances of this case to consider that the actions of the second respondent had that effect on this claimant.

 

19.       The claimant is 23 years of age, well educated, very articulate and intelligent.  In the presentation of her claim to the tribunal she demonstrated excellent written and oral communication skills.  She was able to telephone and write to the second respondent with regard to payment and she was making a verbal grievance.  The tribunal formed the view that the reason why the claimant left her job related solely to the second respondent’s failure to pay her what she believed they had agreed.

 

            While this would ground a claim of constructive dismissal, the tribunal considered it inappropriate to award compensation for sexual harassment in all the circumstances of this case.  The claim is dismissed.

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:          25 February 2011, Belfast.

 

 

Date decision recorded in register and issued to parties: