Winnell vs Lydian Care
| Jurisdiction | Northern Ireland |
| Judgment Date | 08 February 2010 |
| Docket Number | 05744/09IT |
| Court | Industrial Tribunal (NI) |
| Respondent | Lydian Care |
THE INDUSTRIAL TRIBUNALS
CASE REF: 05744/09
CLAIMANT: Heather Winnell
RESPONDENT: Lydian Care
DECISION
The unanimous decision of the tribunal is that the claimant was not unlawfully discriminated against on the ground of pregnancy, and her claim is therefore dismissed.
Constitution of Tribunal:
Chairman: Mr S A Crothers
Members: Mrs S Doran
Mr R Gunn
Appearances:
The claimant was represented by Mr McHugh, Barrister-at-Law, instructed by McGrady Scullion, Solicitors.
The respondent was represented by Miss R Best, Barrister-at-Law, instructed by Rosemary Connolly, Solicitors.
THE CLAIM
1. The claimant claimed that she had been unlawfully discriminated against on the ground of pregnancy. The respondent denied all such allegations.
THE ISSUES
2. At a Case Management Discussion on 27 November 2009 the legal and main factual issues were agreed as set out therein. The legal issues were confirmed by both counsel at the outset of the hearing as follows:-
(i) Was the claimant discriminated against due to her pregnancy contrary to the Sex Discrimination (Northern Ireland) Order 1976 (as amended) by the reduction in her hours?
(ii) If so, did the discrimination cause loss, personal injury and damage to the claimant?
SOURCES OF EVIDENCE
3. The tribunal heard evidence from the claimant and from Pierre Burns a director in the respondent company. The tribunal was also presented with an agreed bundle of documentation and received a separate bundle of agreed medical evidence. The tribunal took into account only documentation referred to in the course of evidence.
FINDINGS OF FACT
4. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact on the balance of probabilities:-
(i) The respondent company (“the Company”) was formed in June 2007. Pierre Burns was initially an employee until in or about August 2008 when he became a director. The company is both a recruitment agency and has dual registration as a nursing and domiciliary care provider. It has a contract with a Health Trust for the provision of domiciliary care services to clients in the community. These services are purchased by the Health Trust on a “spot” or single purchase basis. In addition to his role as director, Pierre Burns is also the registered nurse and responsible person for registration purposes. It was agreed by both parties that the claimant was a worker for the purposes of the relevant provisions of the Sex Discrimination (Northern Ireland) Order 1976 (as amended), (“the Order”).
(ii) The claimant commenced employment with the respondent on 16 October 2007 as a care worker. The contract, signed by the claimant on 5 October 2007 states, inter alia, as follows:-
“2. The Contract
a) These Terms & Conditions constitute the contract between the Care Agency and the Care Worker and they govern Assignments undertaken by the Care Worker with the Client. In the event of the Care Worker declining to accept any offer of work or not attending work for any reason, no contract shall exist between the Care Agency and the Care Worker.
b) For the avoidance of doubt these terms & conditions shall not give rise to a contract of employment between the Care Agency and the Care Worker. The Care Agency acts at all times as an agent for the Care Worker and assumes no responsibility as an employer.
No variation or alteration to these terms & conditions shall be valid unless approved by the Care Agency in writing.
3. The Care Agency will endeavour to obtain suitable Assignments for the Care Worker to work with Clients.
4. The Care Worker acknowledges that it is the nature of temporary work that there may be periods when no suitable work is available and agrees that suitability shall be determined solely by the Care Agency and that the Care Agency shall incur no liability towards the Care Worker should it fail to offer opportunities to work in the category specified in (3) above or in any other category.
5. The Care Agency shall pay the Care Worker remuneration calculated at a minimum hourly rate for each hour worked during an assignment and will be paid weekly in arrears subject to deductions for the purpose of National Insurance Contributions, PAYE and any other deductions which the Care [Agency] may be bound by law to make.”
It was acknowledged by the claimant that there was no guarantee of work and therefore no guarantee of fixed hours or fixed remuneration. The packages of care involved mainly elderly clients and children with special needs or disabilities. Work was allocated taking into account factors such as skill level, geographical location and, primarily, the worker’s availability.
(iii) From March 2008, the claimant had made Pierre Burns aware of the fact that she was planning to go to Australia in December 2008 to get married. Pierre Burns was also aware that the intended absence from work would last from 5 – 6 weeks. The claimant had already spent a period of approximately 3½ weeks in Australia in June 2008.
(iv) In or about August/September 2008, and coinciding with Pierre Burns’ directorship of the company, Carol Savage was recruited by the company as a manager. The tribunal accepts that Pierre Burns was anxious to recruit her and that she brought a number of workers with her who were engaged on terms similar to the claimant. The claimant left for Australia some time between 12 and 15 December 2008 and arrived back in Northern Ireland on Thursday 15 January 2009. At that stage she was about 12 weeks pregnant. She had previously been withdrawn from 2 clients some time prior to going to Australia. Such events were not an indicator of lack of competence. An assessment dated 6/11/08 showed the claimant to be very competent in her role.
(v) The tribunal was shown a detailed analysis of the claimant’s working pattern from week commencing 29 September 2008 up until 9 March 2009 when she went off sick, and for a short period thereafter. A summary of the position, (duly adapted) which was addressed in detail before the tribunal is set out as follows (“HW” is the claimant):-
|
“WEEKS |
HW HRS |
AVERAGE HRS |
HW WAGE |
AVERAGE WAGE |
FEMALE |
MALE |
|
27 |
59 |
29 |
370.93 |
215.96 |
23 |
|
|
28 |
33 |
32.93 |
241.12 |
200.44 |
26 |
|
|
29 |
25 |
24.38 |
187.18 |
197.78 |
26 |
|
|
30 |
75.5 |
28.77 |
447.37 |
227.6 |
28 |
|
|
31 |
70.25 |
25.88 |
408.87 |
196.29 |
29 |
|
|
32 |
55.25 |
28.74 |
297.75 |
225.16 |
28 |
|
|
33 |
65 |
25.56 |
387.75 |
189.28 |
33 |
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