Nesbitt vs The Pallett Centre Limited
| Jurisdiction | Northern Ireland |
| Judgment Date | 17 August 2018 |
| Docket Number | 00304/16IT |
| Court | Industrial Tribunal (NI) |
| Respondent | The Pallett Centre Limited |
THE INDUSTRIAL TRIBUNALS
CASE REF: 304/16
1219/16
CLAIMANT: Donna Nesbitt
RESPONDENT: The Pallet Centre Limited
DECISION
The unanimous decision of the tribunal is that:-
1. The claimant’s claim of equal pay, pursuant to the Equal Pay Act (Northern Ireland) 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 (Northern Ireland) Order 1976.
4. The tribunal makes a total award of compensation to be paid by the respondent to the claimant in the sum of £13,453.83.
5. The claimant’s claim of sexual harassment, pursuant to the Sex Discrimination (Northern Ireland) Order 1976 and her claim for unauthorised deduction of wages and/or breach of contract, for non-payment of bonus, are dismissed, upon withdrawal.
Constitution of Tribunal:
Employment Judge: Employment Judge Drennan QC
Members: Mr I. Carroll
Mrs A. Gribben
Appearances:
The claimant appeared in person and was not represented.
The respondent was initially represented by Mr I. MacLean and subsequently by Ms C. Wall, both of Peninsula Business Services Limited.
Reasons
1.1 The claimant presented a claim to the tribunal on 12 January 2016, in which she made a claim for sex discrimination (equal pay), victimisation and sexual harassment, which was given the case reference number 304/16. The respondent presented a defence to the said claim on 12 February 2016, denying liability for the said claims of the claimant. The claimant presented a further claim of unfair constructive dismissal and a claim for unauthorised deduction of wages and/or breach of contract for non-payment of bonus on 25 April 2016, which was given the case reference number 1219/16. The respondent presented a defence to the said claim on 1 June 2016. The said claims of the claimant were the subject of a “Consolidation Order”, so that both claims were considered together and heard by the same tribunal.
1.2 At the commencement of the hearing, the claimant confirmed, if the tribunal found her dismissal was unfair, that she wished to obtain by way of remedy an award of compensation and, in particular, she did not wish to seek, by way of remedy, an order of reinstatement and/or re-engagement, pursuant to the provisions of Articles 147-151 of the Employments Rights (Northern Ireland) Order 1996 (the 1996 Order). The claimant also confirmed that, in relation to her claim for discrimination by way of victimisation, she was seeking to include, by way of remedy, compensation for injury to feelings and/or personal injury. The claimant, at all times, properly accepted that, in relation to her claim of equal pay and/or unfair constructive dismissal, she could not seek by way of remedy, compensation by injury to feelings and/or personal injury.
In her relation to her claim for personal injury, pursuant to her claim of victimisation, as referred to above, the claimant relied upon medical evidence which was introduced by her following the conclusion of the hearing in this matter; which was subsequently admitted in evidence, by consent, without formal proof, subject to the caveat as to the weight, if any, to be given to such evidence, so admitted by the tribunal, in circumstances where such medical evidence was not the subject of any cross-examination by the respondent’s representative.
1.3 The tribunal, following a series of Case Management Discussions, in the above matter, made relevant orders in relation to the claimant’s claim for equal pay, whereby it was agreed that the tribunal, at the commencement of the substantive hearing, would first determine whether the respondent had established the defence to the claimant’s claim of equal pay, of “a genuine material factor” (GMF defence); and that, subsequently, at a further hearing, the tribunal would determine the claimant’s remaining claims. The tribunal would then, at the conclusion of both said hearings, reserve its decision and subsequently would give its decision, in writing, in relation to all the claimant’s said claims, as referred to above. It was further agreed that if, at the above hearing, the respondent did not establish the GMF defence, then the matter would be relisted for a further hearing to determine all remaining issues in relation to the claimant’s claim of equal pay, pursuant to the Equal Pay Act (Northern Ireland) 1970, as amended (the 1970 Act), following any such failure, by the respondent, to establish the GMF defence.
1.4 At the hearing, relating to determine the GMF defence of the respondent, the respondent was represented by Mr I. MacLean, consultant of Peninsula Business Services Limited. Mr MacLean, due to a period of illness, was unable to represent the respondent at the subsequent hearing to determine the remaining claims of unfair constructive dismissal and/or discrimination by way of victimisation; and it was agreed, by the claimant and the respondent, that at the said subsequent hearing, the respondent would be represented by Ms C. Wall consultant of Peninsula Business Services Limited.
1.5 For the avoidance of doubt, during the course of the hearing of these matters, the claimant withdraw her claim for sexual harassment, pursuant to the Sex Discrimination (Northern Ireland) Order 1976 (the 1976 Order) and also her claim for unauthorised deduction of wages and/or breach of contract for non-payment of bonus, which said claims are dismissed upon withdrawal. Insofar as the claimant was alleging she had been harassed by the respondent, which was denied by the respondent, it was agreed by the representatives that any such allegation remained part of the claimant’s claim of unfair constructive dismissal and not of her claim of sexual harassment, now withdrawn, as set out above.
1.6 It was not disputed by the respondent’s representatives that the respondent was vicariously liable for the acts of the employees of the respondent, in relation to any acts or omissions of them, or each of them, for the purposes of these proceedings, pursuant to the Sex Discrimination (Northern Ireland) Order 1976 and/or the Employment Rights (Northern Ireland) Order 1996.
Relevant Law
2.1 Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides:-
(i) Article 126 the 1996 Order:-
“(1) an employee has the right not to be unfairly dismissed by his employer.”
(ii) Article 127 of the 1996 Order:-
“(1) the purposes of this part an employee is dismissed by his employer if …
(c) the employee terminates a contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”
2.2 Sex Discrimination Northern Ireland Order 1976 (“the 1976 Order”) provides:-
(i) Article 6 of the 1976 Order:-
“A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this order if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason of the person victimised has –
(a) brought proceedings against the discriminator or any other person under this Order or the Equal Pay Act …., or
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Order or the Equal Pay Act …., or
(c) otherwise done anything under or by reference to this Order or the Equal Pay Act …. in relation to the discriminator or any other person, or
(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to contravention of this Order or give rise to a claim under the Equal Pay Act
… or by reason that the discriminator...
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