Worthingtons Commercial Solicitors in Belfast have agreed to write an email every two months exclusively for Legal-Island email subscribers. These emails cover what, in the opinion of the writers, are the recent Northern Ireland employment cases that will most interest employment law practitioners.

This email focuses on two recent and contrasting cases involving alleged less favourable treatment on the ground of the part-time status of the employees. The case decisions, both of which are available in full on the OITFET website, provide useful guidance on how an employer's justification of different treatment might be viewed by tribunals in relation to part-time employees and their full-time comparators.

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1. Jean Martin v SHAC Housing Association – Case Ref: 2038/10

Case heard: 23-26 May 2011. Decision issued: 19th July 2011.

The Claimant in this case was employed as a Support Worker. The Claimant’s case was that she was subjected to a detriment on the grounds of her part-time status by being denied the opportunity to apply for a temporary position to the post of Senior Support Worker in January 2010.

The employer was funded by the Northern Ireland Housing Executive for the Supporting People Programme. This Programme supported vulnerable tenants such as those with alcohol or drug problems or those at risk of suicide. In 2009 an adverse report was issued by the Department for Social Development following an inspection of the Respondent organisation and the Respondent was rated as performing unacceptably in three out of four categories. The Senior Management Team was then suspended and in December 2009 an Acting Chief Executive (a qualified Accountant from another Housing Association) was appointed in order to carry out a review of the employer’s circumstances including its financial situation.

One of the main concerns expressed in the inspection report was that the monthly and quarterly returns for the Supporting People Programme had not been submitted for 2008/2009 and 2009/2010 which meant that the funding provided by the Housing Executive could not be properly monitored. This put the funding for that Programme in imminent jeopardy.

An independent consultant was appointed to conduct an urgent review along with the Acting Chief Executive as a response to the crisis situation whereby the viability of the organisation was at risk. One of the decisions the Acting Chief Executive took was to appoint a Senior Support Worker immediately to co-operate and liaise with the independent consultant and the Housing Executive and others in order to complete as quickly as possible the urgent work required to ensure the viability of the organisation. The decision of the Acting Chief Executive was that he required someone based in Belfast, on a full-time basis with availability to work overtime, and with the ability to collate returns; to deal immediately with complex cases; and to liaise closely with him and the independent consultant on the work.

At that time there were six staff involved in the Supporting People Programme. Ms Agnes Crawford was the only full-time member of the staff based in Belfast and had experience of complex cases as she was working on the majority of them. For these reasons the Acting Chief Executive decided to appoint Ms Crawford to the temporary position of Senior Support Worker which, at the time he made the decision, was envisaged to last for one month. Ms Crawford was appointed on 20 January 2010 with increased duties and increased salary. She also had management responsibility.

Of the six people in the Supporting People Programme, three were temporary employees and three were permanent employees. Of the three permanent employees, two were part-time and only Ms Crawford was full-time. The effect of the decision to appoint Ms Crawford to the Senior Support Worker role was that the Claimant, a part-time worker based in Londonderry and the four other workers (three of which were temporary employees), were all excluded from consideration for the temporary promotion. Indeed the temporary promotion was not advertised and there was no specific announcement of Ms Crawford’s appointment. However from 20 January 2010 onwards the Claimant and others in the team had to seek approval for expenses and holidays from Ms Crawford and it was clear from the evidence at the Tribunal that the Claimant had suspected that something had happened because she started to query the position of Ms Crawford immediately. It was this appointment without due process and on the basis that the Claimant was part-time is the discriminatory act relied upon by the Claimant in her case in the Tribunal.

The Tribunal held that the Claimant was less favourably treated than Ms Crawford in not being offered the opportunity to apply for the temporary promotion which became available in December/January 2010. It is also clear that one of the primary reasons for appointing Ms Crawford was that she worked full-time. The corollary of this is that one of the primary reasons for the Claimant being excluded from consideration was because she was part-time.

The Tribunal went on to hold that they were satisfied that the employer in this case had shown objective justification for the less favourable treatment the Claimant was subjected to. They were satisfied that:

1. There was an exceptional emergency situation in the Respondent organisation at the time;
2. The Acting Chief Executive was struggling to deal with the numerous serious matters emerging daily from the date of his appointment in December 2009.
3. The issue of the Housing Executive funding for the Supporting People Programme was a make or break issue for the organisation requiring urgent efforts given the short timescale imposed by the Housing Executive.
4. It was a legitimate business objective of the Respondent to seek to provide the Housing Executive with the information it sought in order to give clarification on where public funds were being spent.
5. It was legitimate of the Respondent to try and protect 25% of its income in the midst of a crisis and that it was legitimate for the Respondent to seek to protect the funding which helped vulnerable people.

The Tribunal was satisfied that the viability of the organisation as a whole was in jeopardy and regarding it a legitimate interest for the Respondent to seek to protect the Housing Executive funding to prevent the organisation collapsing with the loss of jobs and with the potential abrupt loss of service to vulnerable tenants. The decision to appoint Ms Crawford as a full-time employee based in Belfast familiar with the most complex cases, corresponded to a real need on the part of the organisation to provide necessary returns and to assist the Chief Executive and the independent consultant in their urgent work. The Tribunal was satisfied that “it was appropriate and necessary to make the appointment without trawling the appointment as this would have led to a potentially fatal delay”.

“The urgent appointment Ms Crawford was a proportionate means to achieve that aim and was reasonable and necessary in the circumstances. Whilst the claimant and Ms Crawford were equally capable of dealing with complex cases, Ms Crawford was the only person who could immediately slot into post and collate the necessary information in the short timescale available as she was actually working on the majority of complex cases which were in Belfast. The information on these cases was at the heart of the effort to provide the necessary information to the Housing Executive. Personal liaison with the various parties involved and availability for face-to-face meetings, at short notice, was a reasonable and necessary requirement in the circumstance. It was therefore reasonable to expect the person to be based in Belfast, to be familiar with the complex cases and to be available full-time to carry out the level of work necessary in the short time-frame”.

The Tribunal stated that the application to the Tribunal had been lodged out of the time limit and declined to extend time. The Tribunal found Ms Crawford was appointed to the post on 20 January 2010 and that this was the act and therefore the three month time limit expired on 20 April 2010. The Claimant’s claim form had not been lodged with the Tribunal until 24 August 2010 and was therefore presented outside the time limit.

2. Jacqueline Karim v Laura Ashley – Case Ref: 1977/10

Case heard: 4-6 April 2011. Decision issued: 25 May & 8 June 2011.

The Claimant worked for the Respondent for five years prior to the events that took place which are the subject of the Tribunal hearing. When the Claimant went for interview for the post of Sales Advisor with Laura Ashley she made a claim that she would not be able to work outside the hours of 9am to 1pm as she had to pick up her son from school at 2pm. The Claimant’s son has the condition Attention Deficit Hyperactivity Disorder. This means that the Claimant has to be the one to collect her son. This is not a task that she can ask anyone else to undertake.

In or around April 2010 employees of the Respondent received letters to say that a new working rota was proposed and meetings would be held to discuss this rota. There was a warning that this rota could cause redundancies. This rota which was designed to focus on customer service, incorporated a fundamental change to the working hours of the Respondent’s employees. It required the employees to be flexible (i.e. to be able to work any hours) within the hours of 9am to 7pm Monday to Wednesday and Friday, 9am to 9pm on Thursday and 1pm to 6pm on Sunday.

At the first consultation on 27 April 2010 the Claimant was faced with this rota and asked if there were any slots that she could do. The Claimant was not able to do any of the shifts proposed other than those which did not involve her needing to pick up her children. A second meeting took place on 4 May 2010 and the Claimant said that while she could work at weekends she did not want her hours to drop.

The third consultation meeting took place on 16 July 2010 and this was a meeting that the Claimant was attending in the knowledge that she was facing redundancy. The Store Administrator had decided to take redundancy and she suggested to the Claimant that she apply for her job. The Claimant suggested to the Respondent that she would take the two positions available, the administrative position and the stock control position as this would cover her hours. The Respondent did not consider that it was possible for the Claimant to fill both positions as they considered that the work patterns and the duties required for each position were incompatible.

The Claimant took the post of Office Administrator.

One third of the female workforce in the Castle Court store had difficulties with the rota. There was no evidence before the Tribunal that any male employee and difficulty with this rota. The Regional Manager, Mr Kenny Walsh, had no equal opportunities training and was unfamiliar with the concept of indirect discrimination. He was interested in trying to turn around the fortunes of the Castle Court Laura Ashley store which was substantially loss making. The Tribunal held that the change of hours was a fundamental change in the terms and conditions of the contract of employment.

In relation to the defence of justification the Tribunal considered that, “In the light of all relevant factors and taking into account the possibility of achieving by other means the end pursued, we do not consider that the respondent has satisfactorily discharged this burden of proof. The tribunal did not hear cogent factual evidence that demonstrated why the aim pursued was legitimate and necessary. The tribunal heard that the Castle Court store had lost £250,000 in the last trading year and the imposition of the new rota had been carried out successfully in the other stores run by the respondent in Northern Ireland. While the new joint Chief Operating Officer of the company was bent on focusing on Customer Service and the purpose of the rota was to make sure that the sales floor in the stores was covered by appropriate personnel at all times, there was no cogent explanation of why this particular rota would achieve this. While the amount of £250,000 of a loss is by any reckoning substantial, this evidence is set against by Mr Walsh’s other evidence that other stores had been opened in Northern Ireland. Effectively, this was a cost cutting exercise”.

The Tribunal considered that the Respondent did not provide any evidence to suggest that this new rota was more than a cost cutting measure. There was no evidence of footfall at various times of the day in the Castle Court store for example. There was no evidence that achieving the aim had been taken into account by considering other means.

There was no evidence from which the Tribunal could find that the rota was a proportionate means of achieving a legitimate aim of cutting costs. The Tribunal found that the discriminatory effect of the imposition of this rota was simply not taken into account at all in the thinking of the respondent even once it knew that it was going to cause trouble to female employees.

The Claimant was awarded £6,000 in relation to injury to feelings plus interest and further the Claimant was now receiving £110 less net per month in her new terms and conditions and also that the Claimant had been ill for a period of four months to the sum of £880. The Tribunal held that it was not unreasonable to compensate the Claimant for future loss for a period of two years at the rate of £110 per month therefore she was awarded in total £9,927.67.

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The main content of this email was provided by Maxine Orr of Worthingtons Commercial Solicitors in Belfast. Maxine works exclusively in employment law and should anyone have any queries she may be contacted on 028 90 434015. Maxine is an accredited mediator Website:
http://bit.ly/9NE0Ia

Maxine will be speaking about NI case law at the Legal-Island annual reviews of employment law in November - see below for details.

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Legal-Island
11 October 2011

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