Nesbitt, Donna and The Pallet Centre Limited
| Jurisdiction | Northern Ireland |
| Neutral Citation | [2019] NICA 67 |
| Date | 29 November 2019 |
| Court | Court of Appeal (Northern Ireland) |
1
Neutral Citation No: [2019] NICA 67
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: McC11105
Delivered:
29/11/2019
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
IN THE MATTER OF AN APPEAL FROM THE DECISION OF THE
INDUSTRIAL TRIBUNAL
________
BETWEEN:
DONNA NESBITT
Claimant/Appellant:
and
THE PALLETT CENTRE LIMITED
Respondent:
________
Before: TREACY LJ, McCLOSKEY LJ and McALINDEN J
________
McCLOSKEY LJ (delivering the judgment of the court)
Overview
[1] For reasons which will become clear it is the unanimous decision of this
court that this appeal, ultimately, turns on a relatively net and uncomplicated issue
of procedural propriety and fair hearing and should be allowed.
The Underlying Proceedings
[2] The Appellant was employed by the Respondent as a permanent, part-time
office supervisor. From 2015 she was in dispute with the Respondent regarding her
pay. The nub of this grievance was her assertion that all of the male employees in
the Respondent’s undertaking who had similar roles and, for the most part, had less
years service than her, received higher wages. The Appellant added in her Form
ET12 that she had “… taken on extra duties and extra responsibilities ….” in her post.
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[3] The Appellant presented a total of three applications to the Industrial
Tribunal (“the Tribunal”). The legal framework of the Appellant’s first two
applications to the Tribunal is evident from the following passage:
“I am aware that none of the employees listed as my
comparators are an identical comparison. However I feel that the
demands, skill and decision making of my position within this
company are equal to and possibly greater which is why I feel
that this difference in pay is unlawful and that I have been
discriminated against on the grounds of gender/sex contrary to
the Sex Discrimination (NI) Order 1976 and the Equal Pay Act
(NI) 1970 as amended and/or relevant European law.”
Elaborating the Appellant describes an alleged assault perpetrated against her by a
member of senior management, certain fractious exchanges with other superiors, an
investigation meeting, an allegation that she had engaged in gross misconduct by
committing a breach of confidentiality and suspension from her employment. The
outcome of the ensuing disciplinary process was a dismissal of the allegation of
breach of confidentiality. These events all spanned the period October/November
2015.
[4] The Appellant remained off work thereafter. She asserts that she suffered
from shock, distress and anxiety. She did not return to work subsequently. Her
employment terminated some months later. This gave rise to the third of her
applications to the Tribunal, which entailed a complaint of unlawful constructive
dismissal.
The Tribunal’s Decision
[5] It is clear that the Appellant’s claims were conjoined. The Tribunal
conducted hearings over a period of 6 non-consecutive days in May 2017 and
October 2017. Its decision was promulgated on 17 August 2018 and is in the
following terms:
“1. The claimant’s claim of equal pay, pursuant to the Equal
Pay Act (NI) 1970, as amended, is dismissed, the
Respondent having established the genuine material
factor defence, for the purposes of section 1(3) of the said
Act.
2. The claimant was unfairly constructively dismissed.
3. The claimant was unlawfully discriminated, by way of
victimisation, pursuant to the Sex Discrimination (NI)
Order 1976.
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4. The Tribunal makes a total award of compensation to be
paid by the respondent to the complainant in the sum of
£13,453.83.
5. The claimant’s claim of sexual harassment, pursuant to
the Sex Discrimination (NI) Order 1976 and her claim
for unauthorised deduction of wages and/or breach of
contract, for non-payment of bonus, are dismissed, upon
withdrawal.”
Thus two of the three claims succeeded. The Appellant was unrepresented in the
Tribunal proceedings. The Respondent was represented by a member of the
organisation Peninsula Business Services Limited.
[6] The compensation awarded by the Tribunal had the following components:
(a) Injury to feelings for discrimination by victimisation: £4500 plus
interest at 8% from 22 October 2015 until August 2016, grand
total £5514.90.
(b) For unfair constructive dismissal: a basic award of £5438.93,
loss of earnings of £2000 and loss of statutory rights of £500,
grand total £7938.93.
The Appellant exercised her right to apply for a review of the Tribunal’s decision.
This resulted in an increase in the gross award for injury to feelings from £4500 to
£7000, together with appropriate interest (total £8578.74). In this way the overall
award was increased by some £3000, from £13453.83 to £16517.67.
Notice of Appeal
[7] The Appellant challenges the decision of the Tribunal by appeal to this court.
The main focus of the Appellant’s initial Notice of Appeal is evident from the
following passage:
“In regard to my appeal against the decision to dismiss my
claim for equal pay, the tribunal’s finding that the respondent
has proven that the variation is genuinely due to a material
factor which is not the difference of sex and that factor may be
such a material difference was perverse …..”
There follows some suitable elaboration. The Appellant drew attention to, in
particular, asserted inadequacies in the oral evidence adduced on behalf of the
Respondent, asserted inaccuracies and inconsistencies in such evidence, the
suggested absence of supporting documentary evidence, an asserted failure by the
Tribunal to correctly understand certain aspects of the evidence and, finally, a
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8 cases
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Cox's (Lorraine) Application
...for injury to feelings as opposed to psychiatric injury in inter alia discrimination cases. See for example Nesbitt v The Pallett Cen tre [2019] NICA 67. Mummery LJ in the Vento case at paragraphs [65] and [66] stated as follows: “[65] Employment Tribunals and those who practise in them mig......
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Mahmud's (Omar) Application
...of West Yorkshire Police ([2002] EWCA Civ 1871) [2003] ICR 318; and which are used in this jurisdiction (e.g. Nesbitt v The Pallet Centre [2019] NICA 67). It is noteworthy that the reference made to the bands in Alseran concerned treatment that was outside of the discrimination field, where......
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Suresh Deman and Queen's University Belfast
...RsCJ Order. 94 r.2].” Appeals from Tribunals to this Court: General Principles [45] These are summarised in Nesbitt v The Pallet Centre [2019] NICA 67 at paras [56] – [61]: “[56] What is the correct test to be applied in determining this second ground of appeal? The starting point is the st......
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TF and N.I. Public Services Ombudsman
...to the respondent.” Appeals from Tribunals to this Court: General Principles [43] These are summarised in Nesbitt v The Pallet Centre [2019] NICA 67 at [56]-[61]: “[56] What is the correct test to be applied in determining this second ground of appeal? The starting point is the statute whic......
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