The claimant was employed as a hairdresser and made claims in respect of unfair dismissal, holiday pay and notice pay. Accordingly, in relation to unfair dismissal, the central liability issue was whether or not the claimant had been dismissed mainly because she was asserting a statutory right i.e. insisting on obtaining pay slips pursuant to Art.135 of the ERO (NI) 1996. There were a number of key witnesses which the respondent indicated would be called, including himself and an HMRC witness. In fact, neither gave evidence and no explanation was given for this omission. The tribunal was required to consider the evidential implications of these omissions and considered the guidance contained in Wisniewski v Central Manchester Health Authority [1998] PIQR 324.

The tribunal considered that, despite the claimant having less than once year's continuous service, she fell within the scope of Art.140(3)(f) of the ERO 1996 which refers to dismissal for asserting a statutory right and thus she had sufficient grounds for a claim. The tribunal preferred the account of the claimant and held that she had been unfairly dismissed. Specific reference was made to the ‘blatant’ failure to follow the statutory dismissal procedure and a 25% uplift in the compensatory award was made.

Practical lessons

The reliance on the Wisniewksi principles is an important feature of this case and highlights their utility when a respondent, who is expected to provide material evidence, fails to do so. The key trigger here seems to have been the fact that promises had been made that such witnesses would give their accounts which never materialised. Adverse inferences were drawn since these were witnesses that the tribunal could have reasonably expected to hear from and this ultimately strengthened the claimant’s case.